NALLI TEXTILES Vs. MINOR KRISHNAN

JUDGEMENT

(1.) THIS appeal is preferred against the judgment of the learned Principal Subordinate Judge, Salem, passed in O.S.No. 613 of 1986 on 5.9.1988. The defendant is the appellant herein.

(2.) THE averments in the plaint are summarised as follows. THE suit property originally belonged to Venkatarama Chettiar, the grand-father of the plaintiff, who sold it to T.R. Sundaram, who in turn sold the same to M.R. Radha for valuable consideration on 2.4.1962. M.R. Radha, who was acting in a number of Tamil films, purchased the property from and out of his own earning. M.R. Radha conveyed the property to his son Minor Ravi by means of a registered deed of gift on 15.6.1962. Subsequently, Ravi sold the suit property to Rangaiah Chettiar for Rs. 40,000 by registered sale deed, dated 9.2.1972. After the purchase, Rangaiah Chettiar was enjoying the suit property and he had no male issue. His wife Padmalochani had left him and living separately. THEy had a daughter Hamsaveni, who is a lunatic. Rangaiah Chettiar executed a Will on 14.1.1980, which was registered on 19.1.1980, bequeathing the suit property and other properties in favour of the plaintiff with father as his guardian. Rangiah chettiar has also adopted the plaintiff as his son by a registered deed, dated 30.1.1980. Rangaiah Chettiar died on 28.12.1982 at Salem. THE patta for the suit property has been changed in the name of the plaintiff and plaintiff is paying taxes to the Government and he is in possession of the suit property and his father, as his next friend, managing the same. THE defendant filed a suit in C.S.No. 104 of 1966 in the original side of the High Court to recover a sum of Rs. 27,290.84 being the sale price of textile goods supplied to M.R. Radha between 5.10.1964 and 21.1.1966 at Madras. THE High Court passed a personal decree against M.R. Radha and a decree against the assets of joint family properties in the hands of Minor Ravi for the suit claim. THE High Court in the judgment, while vacating the attachment ordered before judgment, held specifically that the Executing Court shall decide as to whether the suit property was a joint family property or not and that matter was left open for the defendant to take appropriate proceedings. Long prior to the debit incurred by M.R. Radha, he had executed a gift settlement deed in favour of his then minor son Ravi, who later sold the property to Rangiah Chettiar in the year 1972. THE defendant filed an Execution Petition, on the decree obtained by him, in the Court of District Munsif at Salem in R.E.P.No. 744 of 1970 and during the pendency of execution petition, Rangaiah Chettiar died and the defendant did not choose to bring the plaintiff on record. THE second wife of Rangiah Chettiar, namely, Padmalochani, and their lunatic daughter Hamsaveni were added as the legal representations of Rangaiah Chettiar on their application in R.E.A. No. 504 of 1983 on 28.7.1983. Earlier, a claim application filed by Rangaiah Chettiar and Ravi in R.E.A. No. 2929 of 1970 for raising the attachment made over the suit property in execution on the ground that the judgment-debtor M.R. Radha was not the owner of the suit property was enquired into by the District Munsif and was dismissed on 10.11.1986. Consequently, the Executing Court ordered Sale of the suit property on 8.1.1987 fixing the upset price of Rs. 1,00,000 and the sale proclamation was affixed in the suit building and only then the plaintiff's next friend came to know about the execution proceedings. He rushed to the Court and obtained certified copies and found that fraud had been perpetrated by the defendant in bringing the suit property for sale. On regular enquiries, it is found that M.R. Radha was declared insolvent in I.P.No. 33 of 1967, dated 15.11.1968 by the High Court, Madras, and the defendant was arrayed as one of the creditors in the petition. THE defendant did not file any claim before the Official Assignee, Madras and the Administration was closed on 30.1.1984 consequent to the death of M.R. Radha. Thus, it is clear that the defendant without filing his proof of debt before the Official Assignee had fraudulently filed the execution petition in the Munsif Court at Salem and the execution proceedings in R.E.P. No. 744 of 1970 are void in law. THE suit property absolutely belongs to the plaintiff and it cannot be brought up for sale. THE execution proceedings are not binding on the plaintiff as he was not a party thereof. THE gift settlement deed was effected by M.R. Radha long prior to the purchase of textile goods from the defendant. During the pendency of the suit, the suit property was brought to sale on 8.1.1987 inspite of interim injunction order passed in I.A.No. 1263 of 1986 and was pending. THE defendant's Manager and the other bidders at the auction had full knowledge about the order of injunction in force and the fact that M.R. Radha was declared as insolvent and the fact that the suit property which was brought to sale does not belong to judgment-debtor or Ravi. In fact, notices were also issued by the plaintiff to the persons concerned on 9.1.1987 itself. THE insolvency proceedings against M.R. Radha have not been terminated yet. THE order passed by the District Munsif in R.E.A. No. 2929 of 1970, dated 10.11.1986, is without jurisdiction, void and contrary to the direction given by the High Court in its decree in C.S.No. 104 of 1966 and it is liable to be set aside. THE plaintiff prayed for a decree declaring his title to the suit property, interdicting the defendant from proceeding against the suit property in pursuance of the decree passed in C.S.No. 104 of 1966 on the file of High Court, Madras and for setting aside the summary order passed in R.E.A. No. 2929 of 1970 in R.E.P. No. 744 of 1970 on the file of District Munsif, Salem, dated 10.11.1986.

(3.) THE defendant filed a suit in C.S.No. 104 of 1966 on the file of this Court against M.R. Radha and his minor son Ravi to recover a sum of Rs. 27,290.84 being the sale price of textile goods supplied to them and obtained a personal decree against M.R. Radha and this Court observed that the question as to whether the suit property could be regarded as asset of the joint family in the hands of minor Ravi and whether they would be liable for the claim under the decree will have to be decided in the execution. THE decree was transmitted to the District Munsif Court, Salem for execution and the defendant filed execution petition in R.E.P. No. 744 of 1970 and the suit property was attached in execution on 8.8.1970. In the said execution petition, M.R. Ravi filed a petition in R.E.A. 2929 of 1970 under Section 47 of C.P.C. on 28.11.1970 to raise the attachment. When the attachment was in force, Rangaiah Chettiar purchased the suit property by sale deed, dated 9.2.1972, with notice and knowledge of attachment and he added himself as second petitioner in R.E.A. No. 2929 of 1970. M.R. Radha, who was second respondent in that petition, died on 17.9.1979 and his legal representatives were added as parties. Rangaiah Chettiar died on 28.12.1982 during the pendency of claim petition and his wife and daughter were impleaded as petitioners 3 and 4 in the claim petition. THE learned District Munsif, after enquiry, by order dated 10.11.1986 dismissed the claim petition in R.E.A. No. 2929 of 1970. Ex.A-15 is the certified copy of the fair order and Ex.A-16 is the certified copy of the decretal order. It appears that no revision was preferred against that order.