Anju Gaggar Another vs M/S Usha Enterprises Another
2022 Latest Caselaw 6127 Tel

THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY

             APPEAL SUIT NO.1062 OF 2017

JUDGMENT:

This appeal suit is directed against the judgment and

decree dated 04.06.2012 in O.S.No.710 of 2006 on the file

of the learned V Additional District Judge (Fast Track

Court), Ranga Reddy District at L.B.Nagar.

2. The plaintiff has filed the Original Suit in

O.S.No.710 of 2006 to declare that the sale deeds

document bearing Nos.7907 of 2005, 7908 of 2005, 7909

of 2005 and 7910 of 2005, all dated 17.06.2005, executed

by defendant No.1 in favour of defendant Nos.2 and 3, as

null and void and to grant such other reliefs as the Court

may deem fit.

3. The trial Court has decreed the suit of the

plaintiff as prayed for declaring the sale deeds stated above

as null and void. Feeling aggrieved by the said judgment

and decree, the defendant Nos.2 and 3 have preferred this

appeal on the following grounds:

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(a) The lower Court has failed to give an opportunity to the defendants to cross-examine PW1.

Though the evidence affidavit of PW1 sent to the address of learned counsel for the defendants was returned with the endorsement 'addressee left', the Court below has treated it as proper service and recorded cross-examination as 'nil'.

(b) The trial Court ought to have made efforts for service of evidence affidavit of PW1 on the defendants.

(c) The suit is decreed only on the evidence of PW1 which is not tested with cross-examination by the defendants.

(d) The defendant Nos.2 and 3 were not parties to the suit in O.S.No.69 of 2005 filed by the plaintiff against the defendant No.1 for recovery of money and that they were not aware of the orders in I.A.No.1117 of 2005 about attachment before judgment but the trial Court has failed to appreciate all these aspects.

(e) The trial Court failed to consider that the defendant Nos.2 and 3 are bonafide purchasers, not having knowledge of proceedings in O.S.No.69 of 2005 and that the judgment and decree impugned was passed declaring the documents Exs.A5 to A8 as null and void and it is liable to be set aside.

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4. Heard learned counsel for the appellants /

defendant Nos.2 and 3 and learned counsel for the

plaintiff. The submissions made on either side have

received due consideration of this Court.

5. For the sake of convenience, the parties

hereinafter referred to as plaintiff and defendants, as they

were arrayed in the Original Suit.

6. The plaintiff has filed the Original Suit in

O.S.No.710 of 2006 against the defendant Nos.1 to 3 for

cancellation of registered sale deeds bearing document

Nos.7907 of 2005 to 7910 of 2005, all dated 17.06.2005.

The defendant No.1 remained absent and was set ex-parte.

Defendant Nos.2 and 3 filed their Written Statements,

issues were settled, but when the trial commenced,

evidence affidavit of PW1 was filed, there was no

representation on behalf of defendants and the trial Court

has made several efforts for service of evidence affidavit of

PW1 on the defendant Nos.2 and 3, who were contesting

the Original Suit by filing Written Statements. As there

was no representation, evidence affidavit of PW1 was also AVR,J AS_1062_2017

sent by learned counsel for the plaintiff to the learned

counsel for the defendants by registered post. Inspite of

this fact, as the defendant Nos.2 and 3 failed to turn up,

cross-examination of PW1 was recorded as 'nil' and Exs.A1

to A9 documents were marked. Relying on the oral and

documentary evidence, the trial Court has decreed the suit

of the plaintiff declaring the above said sale deeds as null

and void and not binding on the plaintiff.

7. Be it stated that the plaintiff has initially filed

O.S.No.69 of 2005 against defendant No.1 before the

learned Principal District Judge, Ranga Reddy District

along with I.A.No.1117 of 2005 seeking attachment before

judgment of immovable property i.e. land admeasuring

Ac.8.00 guntas, situated in Kistapur Village of Medchal

Mandal, Ranga Reddy District wherein the learned

Principal District Judge, Ranga Reddy District directed the

defendant No.1 to furnish security for a sum of

Rs.37,36,690/- by order dated 28.04.2005 and adjourned

the matter to 07.06.2005 and that on 07.06.2005 the

defendant No.1 without furnishing any security, filed a

counter in I.A.No.1117 of 2005. It appears on the very AVR,J AS_1062_2017

same day M/s.South Indian Bank, M.G.Road Branch,

Secunderabad has filed implead petition under Order 1,

Rule 10 of Civil Procedure Code (for short 'CPC') stating

that the said land was mortgaged to their bank by the 1st

defendant and that they have already initiated proceedings

vide O.A.No.25 of 2005. In the meanwhile, defendant No.1

has clandestinely entered into agreement of sale and

executed registered documents bearing Nos.7907 of 2005

to 7910 of 2005 in favour of defendant Nos.2 and 3 in

respect of the entire suit schedule property. The defendant

Nos.2 and 3 were also aware of the said fact. Defendant

No.1 with the sole intention to defeat the claim of the

plaintiff brought the sale deeds into existence. While the

suit was pending, the plaintiff has caused some other

enquiries and he has come to know that the defendant

No.1 has deposited amounts with other companies such as

Barath Petroleum Corporation and as such the learned

Principal District Judge, Ranga Reddy District at L.B.Nagar

has passed prohibitory orders for release of the amounts

payable to defendant No.1. Though the orders were

communicated to the defendants, there was no response.

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In such circumstances, the plaintiff has filed the present

suit for cancellation of the above said four registered sale

deeds.

8. As stated above, the defendant No.1 remained

absent, he was set ex-parte, whereas defendant Nos.2 and

3 have filed their Written Statements alleging that they

have no knowledge of the plaintiff's partnership firm or the

Memorandum of Understanding dated 26.04.2001 between

the plaintiff and defendant No.1 or the filing of earlier suit

in O.S.No.69 of 2005 and the prohibitory orders in IA

No.1117 of 2005 on the file of the learned Principal District

Judge of Ranga Reddy District at L.B.Nagar.

9. It is further stated by learned counsel for the

appellants that the defendant Nos.2 and 3 are the bonafide

purchasers for a valuable consideration and that the

earlier proceedings were suppressed by the defendant No.1.

These defendants were not aware of any publication made

by the plaintiff in the newspapers cautioning the general

public not to enter into any transaction in respect of the

suit schedule property, stated above.

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10. It is further stated by learned counsel for the

appellants that after verification of the original sale deeds

with M/s.South Indian Bank defendant Nos.2 and 3 have

paid entire outstanding amount to the Bank and

accordingly, defendant No.1 has executed registered sale

deeds in favour of defendant Nos.2 and 3 on 17.06.2005.

It is further urged on behalf of these defendants that they

have also paid Rs.4,00,000/- and odd on behalf of

defendant No.1 towards the amount due to the employees

of defendant No.1 and there is no cause of action for filing

the suit.

11. Basing on the above pleadings, following issues

were settled before the trial Court:

(1) Whether the sale deeds bearing Nos.7907, 7908, 7909 and 7910 of 2005 all dated 17.06.2005 executed in favour of the defendant Nos.2 and 3 are null and void?

(2) To what relief?

12. During trial, PW1 was examined, Exs.A1 to A9

documents were marked but inspite of granting ample

opportunity, the contesting defendants i.e. defendant Nos.2 AVR,J AS_1062_2017

and 3 failed to cross-examine the witness and the evidence

affidavit sent to the defendants' counsel was returned with

the endorsement 'addressee left', thereafter, the plaintiff's

evidence was closed. The trial Court on appreciating the

oral evidence of PW1 and the contents of Exs.A1 to A9 held

that the sale of suit land in favour of the defendant Nos.2

and 3 by the 1st defendant is hit by Section 53(A) of

Transfer of Property Act (for short 'TP Act') and that the

defendant Nos.2 and 3 failed to establish that they are the

bonafide purchasers of the same for valuable

consideration.

13. The trial Court further held that the defendant

No.1 clandestinely executed the sale deeds in question in

favour of defendant Nos.2 and 3 only to defeat the interest

of the plaintiff and that during pendency of the suit in

O.S.No.69 of 2005 execution of the said sale deeds by the

defendant No.1 in favour of the defendant Nos.2 and 3 in

view of the prohibitory orders in I.A.No.1117 of 2005 is

illegal and hit by Section 53(A) of TP Act and as such all

the defendants are liable to account for the suit filed in AVR,J AS_1062_2017

O.S.No.69 of 2005. Accordingly, the suit was decreed as

prayed for.

14. Learned counsel for the appellants/defendant

Nos.2 and 3 strenuously contends that no opportunity was

given to the contesting defendants to cross-examine PW1

and it is an ex-parte decree and that though the

defendants have filed their written statement, they were

not allowed either to cross-examine PW1 or to adduce their

evidence and that they are bonafide purchasers for

valuable consideration. Further submits that they are not

parties to the suit in O.S.No.69 of 2005 nor they were

aware of the orders in I.A.No.1117 of 2005 and prayed to

remand the matter to the trial Court for disposal afresh.

15. Per contra, learned counsel for the plaintiff

would submit that the defendants are acting clandestinely

to defeat the interest of the plaintiff. Defendant No.1 was

aware of prohibitory orders passed in I.A.No.1117 of 2005

and in-fact on 07.06.2005 he has filed counter and

executed all the four sale deeds in question in favour of the

defendant Nos.2 and 3 despite prohibitory orders without AVR,J AS_1062_2017

furnishing security. He would further contend that as per

Section 64 of CPC any such private alienations, when the

attachment order was in force, shall be void as against all

claims enforceable under the attachment and that if the

suit is remanded for fresh disposal, it will cause further

delay resulting prejudice to the plaintiff.

16. Undisputedly the conditional attachment order

passed in IA No.1117 of 2005 was in force as on the date of

execution of all these four sale deeds as in Exs.A5 to A8

and that the defendant Nos.2 and 3 are not the parties to

the proceedings in O.S.No.69 of 2005, wherein South

Indian Bank has filed implead petition stating that the

property covered under Exs.A5 to A8 was mortgaged long

back and they have initiated proceedings before the Debts

Recovery Tribunal. In such circumstances, whether

defendant Nos.2 and 3 were aware of such prohibitory

orders passed in I.A.No.1117 of 2005 is a question to be

decided on merits. But in the case on hand, these

defendant Nos.2 and 3 having filed the Written Statement

did not pursue the matter and they failed to give

instructions to their counsel to cross-examine PW1 in AVR,J AS_1062_2017

O.S.No.710 of 2006 nor did they enter into the witness box

to speak the contents of the Written Statement filed by

them on oath to establish that they were not aware of the

orders in IA No.1117 of 2005 and that they are bonafide

purchasers for valuable consideration and they have

verified the original sale deeds of the defendant No.1 in

South Indian Bank and after discharging the loan amount

to the bank the sale deeds were executed. Equally there is

no evidence on behalf of the defendants to show that they

have paid certain amounts to the employees of defendant

No.1 on his behalf as pleaded in their Written Statement.

17. Learned counsel appellants relied on the

principles laid in the following decisions:

          (i)    Robin Thapa Vs. Rohit Dora1.
          (ii)   N.Mohan Vs. R.Madhu2.

          18.    Perused   the   principles   laid   in   the     above

decisions.        In Robin Thapa case (1st supra) the Hon'ble

Supreme Court held that ordinarily, a litigation is based on

adjudication on the merits of contentions of the parties and

AIR 2019 SC 3225

AIR 2020 SC 41 AVR,J AS_1062_2017

the litigation should not be terminated by default, either of

the plaintiff or the defendant. The cause of justice does

require that as far as possible, adjudication be done on

merits.

19. In N.Mohan case (2nd supra) in a suit for

recovery of money decreed ex-parte, the appellant/

defendant has filed appeal challenging the decree with a

delay condonation application. It appears the High Court

has dismissed the said application on the ground that in

the earlier proceedings under Order 9, Rule 13 of CPC the

appellant had stated the same reason to set aside the ex-

parte decree and such reasons were not accepted by the

trial Court pointing out that the appellant has chosen

belatedly to file the first appeal. On such dismissal of the

delay condonation petition by the High Court, the Apex

court has held that the appellant deserves an opportunity

to put-forth his defence in the suit but to avail this

opportunity he must deposit the balance amount as a

condition precedent for condonation of delay.

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20. Per contra, learned counsel for the plaintiff

relied on the principles laid in C.S.Mani (Deceased) by LR

C.S.Dhanapalan Vs. B.Chinnasamy Naidu (Deceased)

through LRs3 wherein the Apex court in paragraph No.27

held that once the attachment before judgment is ordered

it continuous till the property was sold in public auction.

Consequently any sale by the judgment debtor during

substance of attachment is void in so far as the decree

obtained by the appellant is concerned.

21. Reverting back to the facts of the case on hand,

the plaintiff has filed suit for recovery of money against the

defendant No.1 alone in O.S.No.69 of 2005 wherein the

defendant Nos.2 and 3 are not parties but the South Indian

Bank has filed an implead petition. Be it stated that as per

the orders in I.A.No.1117 of 2005 conditional attachment

was ordered under Order 38, Rule 5 of CPC for furnishing

security towards the suit claim but instead of furnishing

surety, the 1st defendant herein, who is the sole defendant

in O.S.No.69 of 2005, has filed counter on 06.07.2005 and

thereafter on 17.06.2005 executed all the four sale deeds

(2010) 9 Supreme Court Cases 513 AVR,J AS_1062_2017

in question in favour of the defendant Nos.2 and 3 herein.

They are claiming to be the bonafide purchasers alleging

that they were not aware of the proceedings in O.S.No.69 of

2005 and the prohibitory orders and that they verified the

title of the 1st defendant with the originals in South Indian

Bank, having satisfied with the title of defendant No.1, paid

the entire sale consideration and obtained sale deeds as in

Exs.A5 to A8 in original. They have also paid some other

amounts, as such, the sale deeds executed in their favour

on 17.06.2005 are not liable for cancellation.

22. In such facts and circumstances of the case

since the evidence of PW1 is not tested with the cross-

examination on behalf of defendant Nos.2 and 3 and also

they did not adduce any evidence on their behalf,

considering the principles laid in the above decisions, I find

some justification in the request made by learned counsel

for the appellants/defendants. However, considering the

fact that Original Suit is pending for the last more than one

and half decade and the plaintiff could not realize any

amount and also considering the principles laid by the

Apex court in the decision second cited supra and that the AVR,J AS_1062_2017

suit is not filed for recovery of amount and it is only filed to

declare the said sale deeds i.e. Exs.A5 to A8 as null and

void as they were executed when the prohibitory orders in

I.A.No.1117 of 2005 in O.S.No.69 of 2005 were in force and

that these defendants failed to cross-examine PW1 and

could not adduce their own evidence in this suit, I am

inclined to set aside the judgment and decree dated

04.06.2012 in O.S.No.710 of 2006. However considering

the fact that Original Suit is filed in the year 2006 and

initially the plaintiff has filed O.S.No.69 of 2005 and after

obtaining decree Execution petition is also filed, I am

inclined to direct the trial Court to dispose of the Original

Suit in O.S.No.710 of 2006 within six months from the

date of receipt of copy of the judgement.

23. In the result, the appeal suit is allowed, the

judgment and decree impugned dated 04.06.2012 in

O.S.No.710 of 2006 is hereby set aside and the Original

Suit is remanded to the trial Court for a fresh disposal by

giving opportunity to the defendant Nos.2 and 3 to cross-

examine PW1 and also giving an opportunity to the plaintiff

to adduce further evidence, if any and after closure of AVR,J AS_1062_2017

plaintiff's evidence, to give opportunity to the defendant

Nos.2 and 3 to adduce their evidence if any, and thereafter

to dispose of the matter on merits within six months from

the date of receipt of copy of this judgment.

Be it stated that since subsequent to disposal of the

Original Suit judicial districts were carved out in the State

and the suit schedule property i.e. land admeasuring

Ac.8.00 guntas, Kistapur Village of Medchal Mandal, Ranga

Reddy District is now forming part of Medchal-Malkajgiri

District, the learned Principal District Judge, Medchal-

Malkajgiri District at Malkajgiri shall make every

endeavour to dispose of the Original Suit within six months

from the date of receipt of copy of this judgment. Both the

parties to the suit shall co-operate for expeditious disposal

of the Original Suit as directed and they shall appear

before the learned Principal District Judge, Medchal-

Malkajgiri District at Malkajgiri on 14.12.2022 for receiving

the directions of the trial Court as to further the

proceedings as indicated above.

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However, in the circumstances of the case, there

shall be no order as to the costs. Miscellaneous

applications, if any pending, shall stands closed.

________________________________ A.VENKATESWHARA REDDY, J Dated : 24-11-2022 abb