M/s. Sumangali Finance vs P. Ramalingam and Sironmani

G. Rajasuria, J.—This Second appeal is focussed animadverting upon the judgment and decree dated 27.07.2012 passed in A.S. No. 78 of

2010 by the learned Principal District and Sessions Judge at Erode, confirming the judgment and decree of the learned I Additional Subordinate

Judge at Erode in O.S. No. 194 of 2006. The parties are referred to hereunder according to their litigative status and ranking before the trial

Court. A summation and summarisation of the germane facts absolutely necessary for the disposal of this Second Appeal would run thus:

(a) The plaintiff who is the appellant herein filed the suit seeking the following reliefs:

(i) To declare that the judgment and decree dated 21.08.2005 in O.S. No. 999 of 1995 passed by the Principal Subordinate Judge, Erode and all

further proceedings taken in pursuance of the same are not binding upon the plaintiff as it is invalid so far as the plaintiff is concerned;

(ii) To grant a permanent injunction restraining the 2nd defendant her men, agents and assigns from alienating encumbering or leasing out the

property obtained as per decree in O.S. No. 999 of 1995 on the file of the Principal Subordinate Judge, Erode and described under schedule B

hereunder; and

(iii) For costs.

(extracted as such)

(b) The gist and kernel of the averments in the plaint would run thus: The plaintiff obtained a money decree as against D1/Ramalingam in O.S. No.

11 of 1991 on the file of the Subordinate Court, Erode on 30.10.1993. Thereafter, E.P. No. 83 of 1999 in O.S. No. 11 of 1991 was filed in the

first Additional Sub Court, Erode for attachment and sale of the immovable property described in the schedule of the plaint. It so happened that

during the pendency of the suit O.S. No. 11 of 1991 itself, attempt was made by the plaintiff herein to get attached the suit property and at that

time it was resisted by the first defendant, whereupon he filed an undertaking before the Court that he would not alienate or encumber the

property. As such, pendente lite attachment before judgment was not ordered. However, in violation of the undertaking given by D1, he entered

into an agreement with D2 so as to sell the property. O.S. No. 11 of 1991 was decreed. Thereafter, taking undue advantage of the fact that there

was no attachment, D1 and D2 got cancelled their agreement to sell, so as to bypass the contempt proceedings and simply entered into a fresh

agreement on the same day in respect of the suit property, and D2 filed a collusive suit in O.S. No. 999 of 1995 citing D1 as the defendant and got

a specific performance decree in respect of the said immovable property and ultimately he got the sale deed executed in his favour through Court.

Before such specific performance decree was passed, the plaintiff herein got the suit property attached vide the order dated 20.04.2000 in the

E.P. No. 83 of 1999. Inasmuch as the said offshoot proceedings collusively emerged between D1 and D2, the plaintiff thought fit to file the present

suit O.S. No. 194 of 2006 seeking the aforesaid reliefs.

(c) Per contra, inveighing and challenging the averments/allegations in the plaint, D2 filed the written statement, whereas D1 remained ex parte; the

warp and woof of the averments in the written statement of D2 would run thus:

D2 is the bona fide purchaser for value of the suit property without notice of any court proceedings earlier which emanated between the plaintiff

and D1 and the present suit was barred by limitation.

(d) Issues were set down by the trial Court for trial.

(e) Up went the trial, during which on the plaintiff''s side one Lakshmanan was examined as P.W.1 and Exs.A1 to A29 were marked; and on the

defendants'' side, one Joseph was examined as D.W.1 and Exs.B1 to B17 were marked.

Ultimately the trial Court dismissed the suit as against which the appeal was filed, for nothing but to be dismissed confirming the judgment and

the decree of the trial Court.

Challenging and impugning the judgments and decrees of the both the fora below, this Second Appeal has been focussed on various grounds

and also suggesting the following substantial questions of law:

(a) When Exhibit A27 sale agreement dated 04.04.1994 had been executed in pursuance of Exhibit A26 sale agreement dated 23.10.1991, which

is subsequent to the undertaking affidavit filed by the 1st respondent on 25.02.1991 under Exhibit A5 and the said suit was decreed on

30.10.1993, whether the Courts below are correct in law in not holding that Exhibit A27 sale agreement dated 04.04.1994 is void in law, in view

of Section 64 of the Code of Civil Procedure?

(b) Whether the Courts below are correct in non-suiting the appellant especially when it is apparent that the respondents have colluded to defeat

the rights of the appellant and gone ahead with fraudulent suit under Exhibit A12 & A3?

(c) Whether the Courts below are correct in law in holding that there is no fraud or collusion between the respondents by eschewing Exhibits A1 to

A29, vital admissions made by DW1 and overlooking several factual aspects which categorically establish the factum of collusion between the

respondents, in order to defeat the decree obtained by the appellant?

(d) Whether the findings rendered by the Courts below by discarding material documents and based on surmises & conjunctures are sustainable in

law?

(e) Whether the Courts below are correct in law in holding that the appellant should separately challenge the sale deed dated 06.08.2004

especially when the appellant had filed the present suit seeking to declare the decree & judgment under Exhibits A12 & A13 and all proceedings

consequent thereto as null and void, without considering the essential difference between a Court auction sale and the sale, deed executed in

pursuance of a decree for specific performance?

(g) When the appellant is entitled to file execution petition within the time stipulated by law, whether the Courts below are correct in law in adverse

inference against the appellant for following due process of law?

(h) Whether the Courts below are correct in law in their consideration of Exhibit A5 undertaking given by the 1st respondent on 25.02.1991 and

his act of violating the same by executing the sale agreement under Exhibit A26 on 23.10.1991, as the suit in which the undertaking was given, was

decreed only on 30.01.1993?

(extracted as such)

On hearing both sides, what I could discern and understand is that in connection with the money decree obtained by the plaintiff/appellant herein

in O.S. No. 11 of 1991, he filed E.P. No. 83 of 1999 for attachment of sale of the property described in the schedule of the plaint herein and

accordingly he got attached the property which was effected on 20.04.2000.

At this juncture, I recollect and call up the relevant provisions of CPC to wit Order 21 Rule 58(2), (3) and (4) and they are extracted hereunder

for ready reference:

58(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or

their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the

claim or objection and not by a separate suit.

(3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination,-

(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or

(b) to disallow the claim or objection; or

(c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or

(d) pass such order as in the circumstance of the case it deems fit.

(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to

the same conditions as to appeal or otherwise as if it were a decree.

(emphasis supplied)

The mere running of the eye over those provisions would unambiguously and unequivocally highlight and spotlight the fact that neither at the

instance of the decree holder nor at the instance of the judgment debtor or anyone claiming under the judgment debtor, a separate suit could be

filed. Surprisingly and shockingly I could come across here that the decree holder i.e., the plaintiff herein, in the previous proceedings who got

attachment of the immovable property i.e., the suit property herein for execution, filed the present suit, challenging and impugning the proceedings

which erupted between D2 and D1 in connection with specific performance of an agreement to sell, whereby D1 agreed to sell the suit property in

favour of D2. In such a case, the substantial question of law in this factual matrix should be thus:

Whether the suit filed by the plaintiff was maintainable in view of the embargo as found embedded in Order 21 Rule 58(2) of CPC?

Heard both sides.

In all fairness pulling no punches, Advocates on both sides in unison would submit that the embargo as contained in Order 21 Rule 58 of CPC is

clear as clarity could be to the effect that, no separate suit at the instance of the decree holder would lie in connection with the attachment effected.

However, the learned Senior Counsel for D2, would try to differentiate and distinguish on facts this case. The decree holder who is the plaintiff

herein/appellant, had correctly chosen the prayer in such a manner that he thought to challenge the decree for specific performance obtained by D2

as against D1 and in such a case, Order 21 Rule 58 of CPC cannot straightaway be pressed into service.

In the written statement no doubt the defendants did not raise this specific issue. Even then it is a common or garden principle of law, that if any

suit has been filed ignoring the specific embargo contained in a statute, then certainly that could be taken note of by the High Court in the Second

Appeal, as it is a pure question of law. Simply because both sides even for argument''s sake might have agreed for conferring jurisdiction on a

Court to entertain a suit which is otherwise not maintainable, the High Court cannot simply tolerate it as such to exist. The Court by virtue of the

supervisory jurisdiction as well as exercising the power u/s 100 of CPC, should necessarily see that the suits specifically barred under law are not

entertained by any Court. Here the Courts obviously without au fait with law and au courant with facts decided the lis and for that matter both

sides also have not brought these facts to the knowledge of this Court. Wherefore I am of the view that the suit filed by the plaintiff in O.S. No.

194 of 2006 is untenable. On balance, a fortiori the Substantial question of law is decided to the effect that the very suit filed by the plaintiff is

untenable and accordingly the judgments and decrees of both the courts below in dismissing the suit alone is confirmed and not the findings

rendered by them. Accordingly, this Second Appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed.