N. KISHOREKUMAR Vs. K. S. MUTHUSAMY

JUDGEMENT

(1.) The facts in a nutshell to be considered are that Nehru Vivekanandhan borrowed a sum of Rs.70,000/- and a promissory note was executed on 28.06.2000 in favour of K.S.Muthusamy. The said loan amount was not repaid and the first respondent in the present appeal K.S.Muthusamy instituted a suit in O.S.No. 810 of 2002 for recovery of money against Nehru Vivekanandhan. On 07.10.2000, O.S.No.810 of 2002 was decreed ex-parte. Based on the ex-parte decree, the decree holder K.S.Muthusamy filed E.P.No. 19 of 2004 on 29.10.2004 against the judgment debtor Nehru Vivekanandhan and the said execution petition was dismissed as not pressed. Thereafter, on 14.10.2005, a sale agreement was executed between the appellant/Kishore Kumar and Nehru Vivekanandhan/judgmebt debtor in respect of R.S.No.732/7 in Kalaignar Karunanithi Nagar Layout ,Erode. Pursuant to the sale agreement, the deed of sale was executed between the appellant and the original owner Nehru Vivekanandhan on 19.05.2008 and after a lapse of three years from the date of execution of sale, another EP was filed by the first respondent/K.S.Muthusamy in E.P.No.113 of 2011 against the original owner of the property Nehru Vivekanandhan for attachment and sale of the said property in respect of R.S.No.732/7 in Kalaignar Karunanithi Nagar Layout ,Erode. Pursuant to the orders passed in E.P. on 29.08.2011, the said property was attached. Knowing the developments, the appellant herein has filed E.A. 6 of 2013 under Order 21 Rule 58 CPC to raise the attachment on 09.04.2013. The E.A.No.6 of 2013 was dismissed on 07.10.2013 against A.S.No. 70 of 2013 was filed and the said first appeal was also dismissed. Thus, the appellant is constrained to move the present civil miscellaneous second appeal.

(2.) The substantial questions of law raised are that : (a) Whether the Courts below are justified in dismissing the petition filed under Order 21 Rule 58 CPC to raise attachment over the property without considering the fact that there was no attachment before judgment and the sale deed (19.05.2008) alleged by the appellant is much prior to attachment made in E.P.No.115 of 2011 (29.08.2011)? and (b) Whether the Courts below are right in holding that the appellant is a "Caveat Emptor" without considering the fact that the encumbrance certificates Ex.P-5, Ex.R-1 and R-2 does not spell out encumbrance arise due to O.S.No.810 of 2002 on the file of I Additional District Munsif, Erode?

(3.) Learned counsel appearing on behalf of the appellant mainly contended that the appellant is an innocent third party purchaser and is no way connected with the said execution proceedings between the respondent as well as the original owner of the property Nehru Vivekanandhan. Thus, the attachment made four years after the execution of sale deed would not be binding on the appellant.