Civil Revision Petition filed under Section 115 CPC challenging an order refusing attachment of property illegally alienated by respondents despite an undertaking. Court distinguished lis pendens case, found fraudulent transfer unproven, dismissed petition but directed disposal of suit.
Directs Trial Court to dispose of the suit within three months; no costs.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.07.2019
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
CRP (PD)No.3410 of 2014
and
MP No.1 of 2014
V.Santhanam .... Petitioner
versus
1. Uma Maheswari
2. Minor Kokulkrishnan
Minor represented by its Guardian / mother
1 st respondent .... Respondents
Civil Revision Petition filed under Section 115 of Civil Procedure Code to set aside the order dated 18-03-2013 and made in I.A. No.189 of 2013 in O.S. No.62 of 2013 on the file of the learned Subordinate Judge, Arni and allow this Civil Revision Petition.
For petitioner : Mr.M.Rajasekhar For respondents : No appearance
ORDER
The instant Civil Revision Petition has been filed challenging the order, dated 18.03.2014 passed by the learned Subordinate Judge, Arni, in I.A. No.189 of 2013 in O.S. No.62 of 2013.
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Brief facts leading to the filing of the instant Revision Petition under Section 115 of CPC.
filed before the learned Subordinate Judge, Arni seeking recovery of money against the respondents based on promissory notes executed by the respondents in favour of the petitioner. During the pendency of the suit, I.A. No.189 of 2013 was filed by the petitioner in O.S. No.62 of 2013 under Order 38 Rule 5 CPC, seeking attachment of two items of properties mentioned in the petition schedule. A counter affidavit was filed by the respondents in I.A. No.189 of 2013 on 20.09.2013, wherein they have given an undertaking in paragraph No.8 of the said counter that they shall not alienate the property referred to in the petition, pending disposal of the main suit. Before final orders could be passed in I.A. No.189 of 2013 by the Trial Court, it was brought to the notice of the Court by the petitioner / plaintiff that despite the undertaking given by the respondents that they shall not alienate the petition schedule properties, the respondents had alienated the first item of the petition schedule property on 27.12.2013 and a copy of the sale deed was also marked as Ex. P6 while I.A. No.189 of 2013 was being heard by the Trial Court.
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their side.
Submissions of the learned counsel
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petition schedule and has not ordered attachment of Item No.1 since, the respondents have already alienated the said property. Further, he would submit that the market value of item 2 of the petition schedule property is only Rs.4,00,000/- and will not secure the claim of the petitioner / plaintiff in the suit, which is of a much higher value.
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to fraudulent transfer, which the Trial Court under the impugned order has not taken note of.
DISCUSSION :
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of the petition schedule property from the respondents, Subsequent to theIR undertaking given by the respondents that they shall not alienate the said property to any third party, the name of the purchaser is also not disclosed by the petitioner. This Court with the materials available on record cannot adjudge as to whether the third party, who has purchased item No.1 of the petition schedule property from the respondents is a bonafide purchaser or not. The Civil Revision Petition is of the year 2014 and till date, no impleading application has been filed by the petitioner to implead the purchaser, who has purchased Item No.1 of the petition schedule property from the respondents, subsequent to the undertaking given by the respondents before the Trial Court that they shall not alienate the property. If at all the petitioner was a prudent litigant, he would have filed an application seeking for impleadment of the purchaser of Item No.1 of the petition schedule property either in the suit or atleast before this Court, in this Civil Revision Petition. But till date, no such impleading application has been filed by the petitioner to implead the said purchaser.
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others versus Elango and others) is not applicable to the facts of the instant case and that was a suit for specific performance, whereas the instant suit is for recovery of money. Therefore, the question of Lis Pendens in a suit for recovery of money will not arise.
items of the properties was passed on 18.03.2014 and therefore, this Court cannot estimate the present market value of the said property as by now the value of the item No.1 of the suit property would have appreciated and it may be sufficient to secure the suit claim.
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miscellaneous petition is closed.
02.07.2019
Index: Yes/ No Internet: Yes/No Speaking Order/Non-speaking Order vsi2
To The Principal Subordinate Judge,
Thiruvannamalai.
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ABDUL QUDDHOSE, J.
vsi2
CRP (PD)No.3410 of 2014
02.07.2019
3 issues framed by the court
Whether the Trial Court erred in refusing attachment of property sold in violation of an undertaking because the petitioner failed to implead the purchaser.
Whether the doctrine of lis pendens applies in a suit for recovery of money.
Whether the petitioner has established a fraudulent transfer under Section 53 of the Transfer of Property Act.
Colour shows how this judgement treated each authority
Marimuthu and others versus Elango and othersDistinguished¶10
(2006) 1 M.L.J. 199
2 provisions across 1 enactments
Santhanam
Uma Maheswari
Minor Kokulkrishnan
Abdul Qudhoose
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
