Dismissed

Karuppasamy v. K.S. Eswaran

Madras HC11 Mar 2014CRP(MD)/188/2014

Case brief

AI extract

What is this about?

This court dismissed the civil revision petition challenging the dismissal of an application to raise property attachment. The court endorsed the trial judge's finding that the alleged partition deed, executed after the suit was filed, was a sham fabricated to defeat the plaintiff's claim. No merit was found in the revision.

What did the court decide?

Revision petition dismissed with no costs. Connected Miscellaneous Petition closed.

Karuppasamy Vs K.S. Eswaran — Property and Title | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 10.02.2015

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CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN

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CRP(PD)MD)No.188 of 2014 and M.P.(MD)No.1 of 2014

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Karuppasamy : Petitioner/Proposed respondent

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Vs.

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1.K.S.Eswaran : 1st Respondent/Plaintiff 2.K.Anandan : 2nd Respondent/Defendant

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Prayer : Civil revision petition is filed under Article 227 of Constitution of India, against the fair and decreetal order, dated 10.10.2013 and made in I.A.No.12 of 2013 in O.S.No.245 of 2012 on the file of the Sub Court, Vedasandur.

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For Petitioner : Mrs.V.Muthumani

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For Respondents : No appearance

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O R D E R

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This memorandum of civil revision has been directed against the fair and decreetal order, dated 10.10.2013 and made in I.A.No.12 of 2013 in O.S.No.245 of 2012 on the file of the learned Subordinate Judge, Vedasandur.

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2.The revision petitioner herein is the petitioner in I.A.No.12 of 2013 and third party in so far as the suit in O.S.No.245 of 2012 is concerned. The first respondent is the plaintiff in the above said suit and the 2nd respondent is the defendant.

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3.For recovery of a sum of Rs.1,54,425/- with accrued interest, the first respondent herein has filed the above suit as against the 2nd respondent. The suit was filed on 01.12.2011, on the file of the learned Subordinate Judge, Dindigul and numbered as O.S.No.502 of 2011 of 2011 and subsequently, it appears to have been transferred to the file of the learned Subordinate Judge, Vedasandur and renumbered as O.S.No.245 of 2012.

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4.It is pertinent to note here that along with the suit, the first respondent has also filed an application in I.A.No.388 of 2011 to attach the property specified therein before passing of judgment in the above said suit. Along with the said suit, that application was also transferred to the file of the learned Subordinate Judge, Vedasandur and renumbered as I.A.No.386 of 2011 and an order of attachment was passed on https://hcservices.ecourts.gov.in/hcservices/ 24.11.2012. Thereafter, the revision petitioner, being the 3rd party to the above suit seems to have filed an application in I.A.No.12 of 2013 under Order 38 Rule 8 r/w 151 of CPC to raise the attachment.

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5.The revision petitioner is none other than the father of the 2nd respondent. According to the revision petitioner, he along with the 2nd respondent being his son, had got the suit property through a partition, dated 20.10.2003 under 'B' schedule described therein. Thereafter, they have effected division in respect of the property on 15.12.2011. According to the said partition, 'A' schedule described therein was allotted to the revision petitioner, whereas the 'B' schedule was allotted to the 2nd respondent. After the said partition, they have been enjoying their respective shares. However, patta stands jointly in their names. When the revision petitioner went to the revenue office to apply for change of patta, he was put to understand that his property was attached in pursuant to the order passed in I.A.No.386 of 2011 for the debts incurred by the 2nd respondent.

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6.According to the revision petitioner, the property, which was attached in I.A.No.386 of 2011 is absolutely belonged to him and therefore, for the debt in incurred by his son, who is the second respondent/defendant, his property ought not to have been attached and therefore, he has urged to raise the attachment.

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7.The first respondent, being the plaintiff has filed his counter statement, but the 2nd respondent being the son of the revision petitioner has not chosen to file any objection, instead he has made an endorsement through his counsel on the reverse of the petition in I.A.No.12 of 2013 saying that there was no objection on the part of the 2nd respondent and that the petition be allowed.

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8.The court below, after going through the avements of the affidavit filed in support of the petition and the counter statement filed by the first respondent, has proceeded to dismiss the application in I.A.No.12 of 2013 on 10.10.2013 on the ground that the alleged partition deed, dated 15.12.2011 is a sham and nominal document and prepared only for the purpose of defeating the claim of the first respondent/plaintiff.

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9.Impugning the said order, dated 10.10.2013, the revision petitioner being the third party stands before this court with this civil revision.

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10.When the petition came up for hearing on 11.03.2014, an order was pronounced and in the said order, a mistake was crept to the effect that instead of saying the petition as 'dismissed', it was mistakenly written as 'allowed'. When the matter was brought to the knowledge of this court, the petition was ordered to be listed on 10.02.2015 for clarification. On this day, the learned counsel for the petitioner alone is present. But there is no representation on behalf of the respondents 1 and 2, despite service of notice.

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11.This court has gone through the impugned order as well as the averment of the petition filed in support of the petition in I.A.No.12 of 2013 along with the counter statement filed by the first respondent.

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12.As afore-stated, the suit appears to have been filed by the first respondent on 30.11.2011 and it was taken on file by the learned Subordinate Judge, Dindigul on 01.12.2011. On the said date, an https://hcservices.ecourts.gov.in/hcservices/ application in I.A.No.388 of 2011 was also filed under Order 38 Rule 5 of CPC to attach the property specified therein before passing of judgment. But the alleged partition, which is said to have been effected between

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the revision petitioner and the second respondent has been dated as '15.12.2011', that is after filing of the suit.

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13.In this connection, this court is in agreement with the order of the learned trial Judge.

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14.The learned trial Judge has correctly found that the alleged partition, dated 15.12.2011 could have been fabricated only for the purpose of defeating the claim of the first respondent/plaintiff and therefore, this court has also endorsed the finding of the learned trial Judge, dated 10.10.2013.

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15.Accordingly, this court does not find any merit in the revision petition and it is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.

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Sd/-

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Assistant Registrar (AE)

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/True copy/

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Sub Assistant Registrar

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To,

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The Subordinate Judge, Vedasandur, Dindigul District.

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+1cc to MR.R.SENTHIL KUMAR, ADVOCATE IN SR : 15077

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SR : 06.04.2015 : 3p/3c

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CRP.(PD)(MD)No.188 of 2014 Date :10.02.2015

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https://hcservices.ecourts.gov.in/hcservices/

Karuppasamy v. K.S. Eswaran

Case brief

What is this about?

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Karuppasamy v. K.S. Eswaran

Case brief

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