Ekambaram v. R.Sampath

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 08.03.2022 CORAM : JUSTICE N.SESHASAYEE and C.M.P.Nos.11716, 11721 of 2020 and C.M.P.Nos.7155, 7159 & 18325 of 2021 C.R.P.(NPD) No.1913 of 2020 :

Ekambaram ... Petitioner (Cause-title accepted vide order dated 30.09.2020 made in CMP.No.10913/2020 in CRP.SR.63188 of 2020) Vs.

1.R.Sampath ... 1st Respondent / Petitioner / Auction Purchaser 2Thirugnanasamandam ... 2nd Respondent / 1st Respondent / 1st J.D / 1st Defendant 3.T.Gunasundari ...3rd Respondent / 2nd Respondent / 2nd J.D / 2nd Defendant 4.Natarajan ... 4th Respondent / 3rd Respondent / Decree Holder / Plaintiff 1/7

C.R.P.(NPD) No.1914 of 2020 :

Ekambaram ... Petitioner / Claimant / 3rd Party Vs.

1.Natarajan ... 1st Respondent / 1st Respondent / Decree Holder / Plaintiff 2Thirugnanasamandam ... 2nd Respondent / 2nd Respondent / 1st J.D / 1st Defendant 3.T.Gunasundari ... 3rd Respondent / 3rd Respondent / 2nd J.D / 2nd Defendant 4.R.Sampath ... 4th Respondent / 4th Respondent / Auction Purchaser Prayer in C.R.P.(NPD) No.1913/2020 : Civil Revision Petition filed under Article 227 of the Constitution of India, praying to set aside the order passed in E.P.No.173 of 2009 in E.P.No.355 of 2006 in O.S.No.1100 of 2004 dated 29.01.2020 on the file of the learned District Munsif Court, Katpadi, Vellore.

Prayer in C.R.P.(NPD) No.1914/2020 : Civil Revision Petition filed under Article 227 of the Constitution of India, praying to set aside the order passed in E.A.No.38 of 2010 in E.P.No.173 of 2009 in O.S.No.1100 of 2004 dated 26.08.2015 on the file of the learned District Munsif Court, Katpadi, Vellore District.

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For Petitioner :

Mr.R.Tholgappian (in both CRPs) For Respondents :

Mr.Richordson Wilson [R1] (in CRP.1913/2020) R2 to R4 - No appearance For Respondents :

Mr.Richordson Wilson [R4] (in CRP.1914/2020) R1 to R3 - No appearance COMMON ORDER The revision petitioner herein is the obstructor in the execution proceedings in E.P.No.173/2009 filed by the auction purchaser of a certain property, which he come to purchase in the execution proceedings in a money suit (originally was O.S.No.284/2002, and subsequently was re-numbered as O.S.No.1100/2004 on the file of District Munsif Court, Katpadi).

2. The minimum facts are that the decree holder filed O.S.No.284 of 2002 for money and it came to be decreed exparte on 12.04.2006. In between, an order of ABJ was passed by the trial Court in I.A.No.466 of 2002 in OS.No.284/2002 on 31.12.2002.

3. Heard Mr.R.Tholgappian, learned counsel for the revision petitioner and Mr.Richordson Wilson for the first and fourth respondent respectively in CRP(NPD) Nos.1913 & 1914 of 2020.

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4. The case of the revision petitioner is that on 02.01.2002, before the order of ABJ was passed, he entered into an agreement with the judgment debtor for purchase of the property, and that he had purchased the property vide sale deed dated 21.06.2004.

5. The Execution Court vide its order dated 29.01.2020, has disposed of E.P.No.173/2009 filed by the auction purchaser for delivery of the property, and vide order dated 26.08.2015, dismissed the E.A.No.38/2010, filed by the revision petitioner, obstructing the said delivery. In the course of enquiry into E.A.No.38/2010 filed by the revision petitioner, documents were filed, which inter alia includes the encumbrance certificate pertaining to the property to show that the order of attachment passed in I.A.No.466 of 2002, indeed was communicated to the Sub Registry in terms of Order XXXVIII Rule 11(b) CPC., After considering the same, the Execution Court dismissed E.A.No.38/2010 filed by the revision petitioner, and ordered delivery in E.P.No.173/2009 filed by the auction purchaser.

6. Both the orders passed in E.A.38/2010 and E.P.No.173/2009 are challenged herein by the revision petitioner / obstructor. 4/7

7. Mr.Richordson Wilson, learned counsel for the auction purchaser circulated a copy of Ext.P9, an encumbrance certificate. It shows that an order of attachment before judgement passed in I.A.No.446/2002 in O.S.No.284/2002, was registered even in 2003. The revision petitioner herein admittedly had purchased the property only on 21.06.2004.

8. As outlined earlier, the property attached was brought to sale at the instance of the decree holder in E.P.No.355/2006, in which, the auction purchaser was the successful bidder. Subsequently, the auction purchaser took out an application in E.P.No.173 of 2009, for delivery of the property. At this juncture, the present revision petitioner came up with E.A.No.38/2010, obstructing the delivery under Order XXI Rule 97 CPC., on the ground that he had purchased the property from the judgment debtor/2nd respondent herein, on 21.06.2004.

9. Order XXXVIII Rule 11(b) of CPC., mandates that every order of attachment before judgement shall be communicated to the concerned Sub Registry. Once the same is done, there cannot be any challenge to the legality of the interim attachment made. When once an order of attachment is validly made, Section 64 of CPC. steps in. It renders all the private alienation, post the order of attachment, void. Necessarily, the revision petitioner cannot have any title in him based on the sale deed dated 21.06.2004 to resist delivery of property. This 5/7

Court, therefore finds that the orders of the Execution Court both in E.P.No.173 of 2009 and E.A.No.38/2010 is in order, and does not warrant any interference. Accordingly, both the revisions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.

10. This Court also directs that any amount which the revision petitioner have deposited in the Court, be refunded to him. The revision petitioner made a fervent plea that he has been doing business in the premises, and that his livelihood will be destroyed, if delivery is ordered, and he offered to settle the matter with the auction purchaser. This issue is left open, and the Execution Court may consider exploring the possibility of amicable settlement, and the parties shall negotiate as between themselves. 08.03.2022 Index : Yes / No Internet : Yes / No Speaking order / Non-speaking order ds 6/7

N.SESHASAYEE.J., ds To:

The District Munsif Katpadi Vellore District.

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