S.A.No.

797 of 2017

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Judgment Reserved on Judgment Pronounced on

05.02.2024 08.03.2024

CORAM

THE HONOURABLE MR. JUSTICE P.B.BALAJI

S.A.No.797 of 2017
and C.M.P.No.20013 of 2017

R.Karuppannan .. Appellant

Vs.

Natarajan (Deceased)

1.Manikandan

2.Saroja

3.Gunasekaran

5.K.R.Jagadeesan (Deceased)
..Respondents

PRAYER: The Second Appeal filed under Section 100 of the Civil
Procedure Code against the judgment and decree dated 17.07.2017 passed in
A.S.No.24 of 2015 on the file of the Principal Sub-Court, Salem, confirming
the judgment and decree dated 27.10.2014 made in R.E.A.No.137 of 2004 in
R.E.P.No.126 of 2002 in O.S.No.193 of 2002 on the file of the Principal
District Munsif Court, Salem.

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For Appellant : Mr.N.Manokaran

for Mr.N.Sreenivasalu

For Respondents
For RR1 & 2 : Mr.S.Mukund
Senior Counsel
for Mr.T.S.Vijayaraghavan

For R3 : Exparte

JUDGMENT

This Second Appeal has been filed against the judgment and decree

dated 17.07.2017 passed in A.S.No.24 of 2015 on the file of the Principal

Sub-Court, Salem, confirming the judgment and decree dated 27.10.2014

made in R.E.A.No.137 of 2004 in R.E.P.No.126 of 2002 in O.S.No.193 of

2002 on the file of the Principal District Munsif Court, Salem.

2.The Second Appeal proceedings arise from a suit for recovery of

money filed by one N.Gunasekaran, as plaintiff, in O.S.No.193 of 2002

against one K.R.Jagadeesan, on the file of the Principal District Munsif,

Salem. The suit was filed for recovery of a sum of Rs.29,025/- based on a

promissory note executed by the defendant in the said suit, namely

K.R.Jagadeesan. The suit came to be decreed on 26.04.2002. The defendant

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remained exparte and the District Munsif, Salem, proceeded to pass an

exparte decree. The property was sold by the Executing Court and one

R.Karuppannan was its successful auction purchaser. The decree holder

initiated execution proceedings in R.E.P.No.126 of 2002. In the said

execution proceedings, the third party, namely the respondents herein filed

miscellaneous application in R.E.A.No.137 of 2004, arraying the decree

holder as judgment debtor and the auction purchaser as respondents.

3.It is the case of the said applicants in R.E.A.No.137 of 2004 that

they have purchased the property belonging to the judgment-debtor on

13.12.2002, for a valuable sale consideration of Rs.14,13,500/- and they

have also taken possession of the property. According to the petitioners, they

came to know that the decree holder had filed I.A.No.290 of 2002 under

Order 38 Rule 5 of CPC, seeking attachment of the suit property before

judgment. The suit was decreed exparte as already noted on 26.04.2002 and

the attachment order in I.A.No.290 of 2002, which had been passed earlier

also became absolute on the date of decree (i.e.,) 26.04.2002. According to

the petitioners, the decree holder initiated execution proceedings on

23.07.2002 and sought for bringing the suit property for sale. Even in the

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said execution proceedings, the defendant remained exparte and on

02.09.2002, an order came to be passed.

4.It is the specific case of the petitioner's that the defendant was fully

aware of the proceedings and despite the same, he has sold the property to

the petitioners, after receiving the entire sale consideration on 13.12.2002.

According to the petitioners, they are bonafide purchasers having no notice

about the suit or the execution proceedings, much less the attachment

proceedings. According to the petitioners, the 2nd respondent has also handed

over the possession of the suit property to them and the petitioners have also

effected mutation of revenue records in their names. Thereafter, they have

also put up additional constructions in the suit property and they have been

in absolute possession and enjoyment of the same. While so, on 29.03.2004,

the Court Bailiff along with police personnel came to the suit property and

informed the petitioners about the purchase of the suit property by the

auction purchaser, the 3rd respondent and the petitioners were threatened with

dispossession. As the Court Bailiff did not give any time to the petitioners,

they had no other option, but to remove the belongings and deliver

possession. Thereafter, with the assistance of their Advocate, they verified

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the Court papers and came to know about the auction sale in favour of the 3rd

respondent from 24.10.2002 for a sale consideration of Rs.6,53,000/- and

that the sale was also confirmed on 07.01.2003. The petitioners also noted

irregularities in the legal process adopted by the decree holder and therefore,

moved the Executing Court for conducting enquiry and to put the petitioners

in possession of the suit property.

5.The auction purchaser filed a counter affidavit stating that he is a

bonafide purchaser who has purchased the property in Court auction and it is

the Court which executed the Sale Deed in his favour and therefore,

following the due process of law, the auction purchaser has taken delivery of

the suit property and on these grounds resisted the applications filed by the

petitioners. The Executing Court, after discussing the rival contentions of the

parties, found that the respondents had colluded to defraud the petitioners

and therefore, the petitioners are entitled to redelivery of the property along

with compensatory cost of Rs.3,500/-.

6.The auction purchaser preferred an appeal in A.S.No.24 of 2015.

The First Appellate Court concurred with the findings of the Executing Court

and dismissed the appeal.

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7.The auction purchaser, aggrieved by the concurrent findings of the

Courts below, has preferred the above Second Appeal. The Second Appeal

has been admitted by this Court on 17.11.2023, on the following substantial

question of law:

Whether the Courts below are right in allowing

the applications filed by the respondents 1 and 2
overlooking the material fact that they had purchased
the suit property pending execution proceedings, that
too after Court Auction Sale.

8.I have heard Mr.N.Manokaran, learned counsel for

Mr.N.Sreenivasalu, learned counsel for the appellant and Mr.S.Mukund,

learned Senior Counsel for Mr.T.S.Vijayaraghavan, learned counsel counsel

for the respondents 1 and 2. The 3rd respondent, who is a decree holder,

plaintiff in the original suit proceedings remained exparte even in the Second

Appeal.

9.Mr.N.Manokaran, learned counsel for the appellant would attack the

concurrent findings of the Court below on the ground that the respondents

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are purchasers pending the execution proceedings before the Court and

therefore, they cannot claim to be bonafide purchasers. Further, the learned

counsel for the appellant would also state that the appellant has purchased

the property in a Court auction and the Court has executed a Sale Deed in his

favour and therefore, such a sale cannot be set aside casually, that too at the

instance of purchasers who have taken the risk of purchasing the suit

property pending execution proceedings before a competent Court of law.

10.The learned counsel for the appellant would place reliance on the

following decisions:

1. (2008) 7 SCC 144 (Usha Sinha Vs. Dina Ram &

Others)
2.2003 1 L.W. 772 (Vijayalakshmi Leather Industries
(P) Ltd., Chennai-3 Vs. K.Narayanan & Others)
3.2021 (2) MWN (Civil) 506 (Annakkili Vs. Murugan
& Others)
4.Manu/SC/0819/2022 (Sriram Housing Finance &
Investment India Ltd. Vs. Omesh Mishra Memorial
Charitable Trust.

11. In Usha Sinha' case, the Hon'ble Supreme Court discussed the

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object and scope of Order 21 Rules 97, 98, 100 and 102 and finding it to be

based on justice, equity and good conscience, held that a transferee from the

judgment-debtor is presumed to be aware of the proceedings before a Court

of law. The doctrine of lis pendens under Section 52 of the Transfer of

Property Act, 1882 was also discussed.

12.The Division Bench of this Court in Vijayalakshmi Leather

Industries' case, elaborately dealt with the Rules 98 and 100 as well as 102

of Order 21 of CPC and held that when Section 52 of the Transfer of

Property Act makes it clear that no party to the proceeding can transfer any

property which is the subject matter of the litigation, the transferee from the

party to the proceeding or the judgment-debtor cannot have any valid title.

13.In Annakkili's case, the learned Single Judge of this Court held

that Section 52 of the Transfer of Property Act namely the doctrine of lis

pendens would also apply to money suits.

14.In Sriram Housing Finance' case, the Hon'ble Supreme Court held

that under Order 21 Rule 97 dealing with the resistance or obstruction to

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possession of immovable property by 'any person' obtaining possession of

the property against the decree holder, empowers the decree holder to make

an application complaining of such resistance or obstruction. Rule 99 of

Order 21 also deals with the right of 'any person' other than the judgment-

debtor who is dispossessed by the decree holder. The Hon'ble Supreme Court

further held that the provision vests 'any person' with a right to make an

application complaining about such dispossession of immovable property.

Rule 98 and 100 deal with the power of the Execution Court to pass orders

on applications under Rule 97 and 99. Rule 101 confers with jurisdiction on

the Court as well as an obligation to determine the questions relating to right,

title or interest in the property arising between he parties on an application

made by the aggrieved person. Rules 97 and 99 contemplate adjudication in

the same proceedings and not by a separate suit. Rule 102 clarifies that Rules

98 and 100 shall not apply in a case where resistance or obstruction is

offered by 'transferee pendente-lite' i.e., a person to whom the property is

transferred by the judgment-debtor after institution of the suit in which the

decree is sought to be executed was passed.

5.Per contra, Mr.S.Mukund, learned Senior Counsel for the

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respondents 1 and 2 would state first and foremost that the suit was one

simpliciter for recovery of money that too based on a promissory note.

Therefore the judgments on which reliances is placed on by the learned

counsel for the appellant according to the Senior Counsel would have no

bearing on the facts of the present case. He would further contend that

Section 52 of the Transfer of Property Act cannot be pressed into service in

the present case as the execution proceedings admittedly, arose only under a

suit for recovery of money as from the judgment-debtor who suffered a

decree in a money suit, based on promissory note.

16.The learned Senior Counsel would also state that the auction

purchaser himself stood as a witness when the property was attached and this

only strengthens the collusion between the judgment-debtor as well as the

auction purchaser. He would further contend that the mandatory procedure

under Order 38 Rule 11(b) has not been complied with and therefore, the

reliance place on by the learned counsel for the appellant on the decision of

this Court in Annakkili's case would not apply to the facts of the present

case.

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17.The learned Senior Counsel would also state that the possession

was taken only from the respondents/purchasers as if the judgment-debtor

was in possession and this also amounted to a fraud and also irregular

procedure before the Executing Court. Finally, he would also place reliance

on Ex.P38, Encumbrance Certificate for period 1987 to 2002 which does not

reflect the order of attachment.

18.The learned Senior Counsel for the respondents would also place

reliance on the following decisions:

1.2000 (2) CTC 524 (Mad.) ( Sri Krishna Chit Funds

(Sattur Private Limited, Sattur, Having its Office at Door

No.17, Pillaiyar Koill Street, Sattur Town and Taluk through

its Managing Director Tmt.R.Umayal Vs. R.S.Pillai and

Another).

2.2012 (1) CTC 407 (Mad.) (Sri Humbi Hema Gooda;

Sri Gayathri Peda; Sri Devanga Jagathguru, Charitable

Trust, Santhama Naicekenpalayam, Palladam Taluk,

Coimbatore District rep. by its Power Agent, R.Krishnasamy

@ Girikannan Vs. Tamil Nadu State Transport Corporation

(Cbe) Ltd., Coimbatore Public Limited Company, having its

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registered office at No.37, Mettupalayam Road, Coimbatore,

rep by its Managing Director; P.Kothandapani;

M.Ramachandran; S.Nagarajan).

3.2017 SCC OnLine Mad 37597 (Ammavasai Vs.

Tulasikannu and Another).

4.2017 SCC OnLine Mad 20182 ( Vellapandi Vs.

K.S.Maheswari).

5.2019 (6) CTC 55 ( Nataraja Naidu (Died) and Others

Vs. Soundarajan and Others).

19.In Ammavasai's case, the learned Single Judge of this Court held

that Section 52 of Transfer of Property Act would be attracted only when a

right to immovable property is directly and specifically in question and that

in a money suit, no such right can be said to be directly or specifically or

even remotely be in question.

20.In Ashan Devi's case, the Hon'ble Supreme Court, while

interpreting Order 21 Rule 97 held that the objects of introducing

amendments to the CPC could not be lost sight of and third parties who are

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adversely affected or dispossessed from property involved, who were

originally required to file independents suits claiming title and possession

were also brought within the ambit of Order 21 so that prolonged litigation

can be avoided. The Hon'ble Supreme Court also held that the word

“dispossess” under Rule 99 Order 21 cannot be restricted to actual and

physical possession alone and held that the Execution Court was well within

the law to adjudicate the claim of a third party under Order 21 Rule 99 of

CPC.

21.In Shamsheer Singh's case, the Hon'ble Supreme Court held that

the purpose of amendment to Rule 103 was that any adjudication made under

Rule 101 shall have the same force and be subject to the same conditions as

to an appeal or otherwise, as if it was a decree and Rule 101 affords an

opportunity to get all issues relating to right, title or interest in the property

to be determined. The Hon'ble Supreme Court further held that when an

application had been filed to redelivery of possession, it was obligatory for

the person approaching the Court to establish his right, title or interest in the

property, before becoming entitled to an order for redelivery.

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22.In Mari's case, the Hon'ble Supreme Court held that all questions

relating to right, title and interest arising between the parties to proceedings

namely applications under Order 21 Rules 97 to 99 shall be determined by

the Court dealing with such application 'not by way of a separate suit' and

that the remedy open to the person, who is sought to be dispossessed in

execution of a decree even though not being the party to the decree, has to

move only the Executing Court and establish his independent right and it is

not open to him to file a separate suit for the said purpose.

23.The following decisions have also been relied on by Mr.S.Mukund,

learned Senior Counsel for the respondents 1 and 2, with regard to the

mandatory procedure to be followed under Order 38 Rule 11(b) of CPC.

1.2000 (II) CTC 524 (Sri Krishna Chit Funds

(Sattur Private Limited) rep. by its Managing Director

Tmt.R.Umayal Vs. R.S.Pillai and Another).

2.2012 (1) CTC 407 (Sri Humbi Hema Gooda and

Others Vs. Tamil Nadu State Transport Corporation

(CBE) Ltd., Coimbatore and Others).

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24.In the above decisions, this Court has categorically held that in

terms of Rule 11(b), the order of attachment has to be communicated to the

Registration Officer within whose jurisdiction the immovable property

sought to be attached is situated. This Court has consistently held that the

procedural compliances under the said Rule 11(b) is mandatory and any

default in compliance would save alienations made by the

defendant/judgment-debtor.

25.Keeping the above principles enunciated by the Hon'ble Supreme

Court as well as this Court in mind, I proceed to adjudicate upon the

contentious issue, namely, whether the order of attachment in favour of the

decree holder and consequent purchase of the suit property by the auction

purchaser would bind the respondents herein, who are the purchasers from

the defendant/judgment-debtor.

26.In order to appreciate the rival submissions advanced by the

learned counsel on either side, it would be appropriate to extract Order 38 in

entirety:

Order 38, C.P.C. Arrest and attachment before

judgment:
1. Where defendant may be called upon to furnish

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security for appearance—

Where at any stage of a suit, other than a suit of the
nature referred to in section 16, clauses (a) to (d), the
Court is satisfied, by affidavit or otherwise,—

(a) that the defendant, with intent to delay the plaintiff,

or to avoid any process of the Court or to obstruct or
delay the execution of any decree that may be passed
against him—

(i) has absconded or left the local limits of the

jurisdiction of the Court, or
(ii) is about to abscond or leave the local limits of the
jurisdiction of the Court his property or any part
thereof, or

(b) that the defendant is about to leave India under

circumstances affording reasonable probability that the
plaintiff will or may thereby be obstructed or delayed in
the execution of any decree that may be passed against
the defendant in the suit, the Court may issue a warrant
to arrest the defendant and bring him before the Court
to show cause why he should not furnish security, for
his appearance:

Provided that the defendant shall not be arrested if he

pays to the officer entrusted with the execution of the
warrant any sum specified in the warrant as sufficient
to satisfy the plaintiff's claim; and such sum shall be
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held in deposit by the Court until the suit is disposed of

or until the further order of the Court.

2. Security
(1) Where the defendant fails to show such cause the
Court shall order him either to deposit in Court money
or other property sufficient answer the claim against
him, or to furnish security for his appearance at any
time when called upon while the suit is pending and
until satisfaction of any decree that may be passed
against him in the suit, or make such order as it thinks
fit in regard to the sum which may have paid by the
defendant under the proviso to the last preceding rule.
(2) Every surety for the appearance of a defendant
shall bind himself, in default of such appearance, to
pay any sum of money which the defendant may be
ordered to pay in the suit.

3. Procedure on application by surety to be discharged

(1) A surety for the appearance of a defendant may at
any time apply to the Court in which he became such
surety to be discharged from his obligation.
(2) On such application being made, the Court shall
summon the defendant to appear or, if it thinks fit may
issue a warrant for his arrest in the first instance.

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(3) On the appearance of the defendant in pursuance of

the summons or warrant, or on his voluntary surrender,
the Court shall direct the surety to be discharged from
his obligation, and shall call upon the defendant to find
fresh security.

4. Procedure where defendant fails to furnish security

or find fresh security
Where the defendant fails to comply with any order
under rule 2 or rule 3, the Court may commit him to the
civil prison until the decision of the suit or, where a
decree is passed against the defendant, until the decree
has been satisfied:
Provided that no person shall be detained in prison
under this rule in any case for a longer period than six
months, nor for a longer period than six weeks when
the amount or value of the subject-matter of the suit
does not exceed fifty rupees:
Provided also that no person shall be detained in
prison under this rule after he has complied with such
order.

Attachment before judgment

5. Where defendant may be called upon to furnish
security for production of property
(1) Where, at any stage of a suit, the Court is satisfied,
by affidavit or otherwise, that the defendant, with intent

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to obstruct or delay the execution of any decree that

may be passed against him,—

(a) is about to dispose of the whole or any part of his

property, or
(b) is about to remove the whole or any part of his
property from the local limits of the j urisdiction of the
Court,

the Court may direct the defendant, within a time to be

fixed by it, either to furnish security, in such sum as
may be specified in the order, to produce and place at
the disposal of the Court, when required, the said
property or the value of the same, or such portion
thereof as may be sufficient to satisfy the decree, or to
appear and show cause why he should not furnish
security.
(2) The plaintiff shall, unless the court otherwise
directs, specify the property required to be attached
and the estimated value thereof.
(3) The Court may also in the order direct the
conditional attachment of the whole or any portion of
the property so specified.
[(4) If an order of attachment is made without
complying with the provisions of sub-rule (1) of this
rule such attachment shall be void.]

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6. Attachment where cause not shown or security not

furnished

(1) Where the defendant fails to show cause why he

should not furnish security, or fails to furnish the
security required, within the time fixed by the Court, the
Court may order that the property specified, or such
portion thereof as appears sufficient to satisfy any
decree which may be passed in the suit, be attached.
(2) Where the defendant shows such cause of furnishes
the required security, and the property specified or any
portion of it has been attached, the Court shall order
the attachment to be withdrawn, or make such other
order as it thinks fit.

7. Mode of making attachment

Save as otherwise expressly provided, the attachment

shall be made in the manner provided for the
attachment of property in execution of a decree.

8. Adjudication of claim to property attached before

judgment
Where any claim is preferred to property attached
before judgment, such claim shall be adjudicated upon
in the manner hereinbefore provided for the
adjudicated of claims to property attached in execution
of a decree for the payment of money.]

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9. Removal of attachment when security furnished or

suit dismissed

Where an order is made for attachment before

judgment, the Court shall order the attachment to be
withdrawn when the defendant furnishes the security
required, together with security for the cost of the
attachment, or when the suit is dismissed.

10. Attachment before judgment not to affect rights of

strangers, nor bar decree-holder from applying for
sale
Attachment before judgment shall not affect the rights,
existing prior to the attachment, of persons not parties
to the suit, nor bar any person holding a decree against
the defendant from applying for the sale of the property
under attachment in execution of such decree.

11. Property attached before judgment not to be re-

attached in execution of decree
Where property is under attachment by virtue of the
provisions of this order and a decree is subsequently
passed in favour of the plaintiff, it shall not be
necessary upon an application for execution of such
decree to apply for a re-attachment of the property.

11A. Provisions applicable to attachment

(1) The provisions of this Code applicable to an
attachment made in execution of a decree shall so far
as may be, apply to an attachment made before
judgment which continues after the judgment by virtue
of the provisions of rule 11.

(2) An attachment made before judgment in a suit

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which is dismissed for default shall not become revived

merely by reason of the fact that the order for the
dismissal of the suit for default has been set aside and
the suit has been restored.]
In fact, the Madras High Court, in and by an
amendment, has introduced Rule 11-B. For better
appreciation, the said Rule 11-B of Order 38 of CPC is
extracted hereunder:

11-B. Order of attachment to be communicated

to the Registering Officer - Any order of attachment
passed under Rule 5 or 6 of this Order and any order
raising the attachment passed under Rule 9 of this
order shall be communicated to the Registering Officer
within the local limits of whose jurisdiction the whole
or any part of the immovable property completed in
such order, is situate.
12. Agricultural produce not attachable before
judgment

Nothing in this Order shall be deemed to authorize the

plaintiff to apply for the attachment of any agricultural
produce in the possession of an agriculturist, or to
empower the Court to order the attachment or
production of such produce.

13. Small Cause Court not to attach immovable

property
Nothing in this Order shall be deemed to empower any
Court of Small Causes to make order for the
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attachment of immovable property.

27.It is pertinent to note that the Code of Civil Procedure does not

provide for any such requirement as contemplate under Rule 11-B. Rule 11-

B has been introduced by way of an amendment by the High Court of

Madras. It is clear from the language employed under Rule 11-B that any

order of attachment that is passed either Rule 5 or Rule 6 of Order 38 or any

order raising attachment passed under Rule 9 of Order 38 shall be

communicated to the Registering Officer within the local limits of whose

jurisdiction, the whole or any immovable property comprised in such order,

is situate.

28.I have already discussed the consistent line of decisions of this

Court wherein it has been unequivocally held that non compliance of Rule

11-B would be fatal and when there is a failure to communicate the order of

attachment as contemplated under the above Rule, the order of attachment

itself would have no effect or force.

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29.The very object of this amendment itself is very laudable, for

instance taking the case on hand itself, the litigation arose out a simple suit

for recovery of money based on a promissory note executed by the defendant

in the original suit in favour of the plaintiff, that too for a partly sum of

Rs.20,000/-. In the said suit, the plaintiff had also taken out an application

seeking the defendant to furnish security and on such failure to furnish

security, sought for passing of an order of attachment before judgment.

Admittedly, the defendant remained exparte and the order of attachment

came to be passed. It is the duty of the decree holder to have communicated

the order of attachment to the Sub Registrar concerned in whose jurisdiction

or locality the immovable property was situated. Only if this mandatory

procedure had been followed or complied with, the attachment order would

have been reflected in the encumbrance records. When a property is sold by a

willing seller to a willing purchaser, one of the relevant documents that

assumes much significance is the encumbrance certificate because, it is the

document which shows the entries that are relating to the subject property

which is sought to be sold/purchased.

30.Taking the case of the respondents 1 and 2 herein who claimed to

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be bonafide purchasers for value from the 2nd respondent, it is impossible for

them to have known about the order of attachment passed by the Civil

Court, unless and until their vendor namely the defendant/judgment-debtor

had been fair and bonafide in disclosing the said factum the purchasers. Only

in order to protect innocent purchasers from dealing with the properties that

are subject matters of attachment, the Madras High Court has introduced

Rule 11-B, which is not available even in the main Code itself. This being

the position, the mandate of Rule 11-B cannot be whittled down by stating

that the auction purchaser under a Court auction of immovable property,

arising out the attachment before judgment proceedings/execution

proceedings in a suit for recovery of money would have to be protected,

despite failure to comply with mandate of Rule 11-B. Once the order of

attachment is not duly and properly communicated to the Registering

Officer, as discussed herein above, the order of attachment itself looses its

value/effect. Thus, no legal rights can flow therefrom. In such circumstances,

despite the fact that the appellant has purchased the property, only through a

Court auction, he cannot claim to any preferential right or protection under

the law.

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31.Further, admittedly, the possession was taken only from the

contesting respondents herein subsequent to their purchase from the

judgment-debtor and not from the judgment-debtor himself. This procedure

again appears to be highly irregular and without following the procedure as

contemplated under Order 21 to take possession from the third parties who

are in possession of the suit property in question. The decree holder cannot

claim to have validly taken possession, at the time of executing the decree.

The averments in REA.No.137 of 2004 is that without any notice and

personal visit by the Court Bailiff to the suit property, orders of Police aid

and break open have been ordered and possession was taken from the

contesting respondents herein cannot be brushed aside rightly.

32.In the counter filed by the auction purchaser, he has stated that he

has taken possession only from the judgment debtor and there is no

obstruction for the execution being proceeded with. However, on the date of

taking delivery namely on 29.03.2004, the contesting respondents had

already purchased the property under a registered Sale Deed dated

13.12.2002, in pursuance of which, they have been in possession and to

evidence the same, they have also filed several documents in the nature of

House Tax receipts, Demand Registers, Water and Telephone Bills, LIC

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receipts as well as communication form the Electricity Board and Water Tax

card. Therefore, it is clear that the possession has been taken only from the

contesting respondents herein and not from the judgment-debtor.

33.Surprisingly, I do not find the signature of the judgment debtor in

Ex.P30. It is a receipt which has been signed only by the auction purchaser

which is nothing but a self serving document. The proper procedure to be

adopted by the Court Bailiff was to obtain signature of the judgment-debtor

to confirm the fact that he has vacated and delivered the possession of the

suit property in compliance with the decree.

34.In the present case, though it is the specific contention of the

appellant that he has taken possession only from the judgment-debtor who

was present on the relevant date when the Bailiff went there to take forcible

possession, the Bailiff ought to have obtained the signature of the judgment-

debtor instead of producing a self serving receipt from the auction purchaser

that he has taken possession.

35.Apart from the above submissions, the learned Senior Counsel

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would also point out that at the time of effecting tom tom, the auction

purchaser stood as a witness and therefore, the learned Senior Counsel would

contend that he was very much in the know of the entire proceedings and it

established a clear case of collusion between the judgment-debtor and the

auction purchaser. However, despite these irregularities and shortcomings in

following the due process of law while executing the decree for recovery of

possession, in view of the fact that the non communication of the order of

attachment to the jurisdictional Sub Registrar, the very foundation itself gets

rocked and no amount of further proceedings arising out of the said

attachment order can have any legal validity or effect. Therefore, the very

sale, though by the Court, in auction proceedings, in favour of the appellant

itself is not valid and is illegal in the eye of law. Consequently, the recovery

of possession of the property purchased by the appellant in auction also

automatically goes and the respondents are entitled to redelivery of

possession.

36.Though the Hon'ble Supreme Court in Sri Humbi Hema Gooda

and Others Vs. Tamil Nadu State Transport Corporation (CBE) Ltd.,

Coimbatore and Others, held that Rules 98 and 100 shall not apply to the

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cases where resistance or obstruction in execution of decree is offered by a

transferee pendente lite, that is a person to whom the property is transfered

by the judgment-debtor, after institution of the suit, in which the decree

sought to be executed was passed, here, in the present case, the facts are

slightly different. It is not a case of a resistance or obstruction by a transferee

pendente lite. It is an application for redelivery of the property by a bonafide

purchaser for a valuable consideration. Admittedly, when the attachment

order was not communicated to the Sub Registrar, the attachment would

have effect and therefore, the question of transferee a pendente lite would

never come into play in the first place. Therefore, the said decision would

not come to the aid of the appellant.

37.For all the above reasons, I do not find any substantial questions of

law to be answered in favour of the appellant herein. In fine, the Second

Appeal is dismissed. There shall be no order as to costs. Consequently,

connected Civil Miscellaneous Petition is closed.

08.03.2024

Index : Yes/No
Speaking Order/Non-Speaking Order

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 S.A.No.797 of 2017

ata

P.B.BALAJI., J.

ata

To
1.The Principal Sub-Court, Salem
2.Principal District Munsif Court, Salem.
3.The Section Officer, VR Section, High Court, Madras.

Pre-delivery judgment made in

S.A.No.797 of 2017

08.03.2024

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 S.A.No.797 of 2017

S.A. No.797 of 2017

P.B.BALAJI, J.,
Today, this matter is listed
under the caption 'for being
mentioned'.
2. On going through the
Judgment, dated 08.03.2024, it is seen
that in the twelfth line of the
paragraph No.36, by inadvertently
typed as “would have effect”, it
should be read as “would have no
effect”. Hence, the Registry is
directed to include the the said word
"no" in the twelfth line of the
paragraph No.36 and correct the error
in the judgment dated 08.03.2024.
3. Except for the aforesaid
modification, judgment dated
08.03.2024, remains unaltered in all
other respects.

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