UNNAMALAI Vs. THAMIZHARASI

JUDGEMENT

(1.) These Civil Miscellaneous Second Appeals are by the unsuccessful claimant, challenging the dismissal of the Civil Miscellaneous Appeals by the lower appellate Court, confirming the order of the Executing Court, dismissing the claim petitions.

(2.) The brief facts leading to the filing of these Civil Miscellaneous Second Appeals are as follows:- Appellant is a third party claimant in both the execution proceedings. The respondents 1 and 2 are the judgment debtors and the 3rd respondent is the decree holder. The 3rd respondent had initiated two separate Arbitration Cases in ARC Nos.614 and 612 of 1998 against the respondents for recovery of money due under two different promissory notes and obtained Awards as against the respondents 1 and 2 on 31/7/1998. There were no appeals as against the awards and, therefore, the Awards dtd. 31/7/1998 have become final. Earlier, the execution petitions filed by the decree holder in the year 1999 for the arrest of the 2nd judgment debtor pursuant to the awards, it appears, had been dismissed by the executing court for the default of the petitioners and the subsequent execution petitions filed by the decree holder in the year 2001 for attachment of the properties of the judgment debtors had also been dismissed for the default of the petitioner. Thereafter, on 10/4/2008, the 3rd respondent initiated two separate execution proceedings as stated above against the respondents 1 and 2 herein in R.E.P.No.66 and 65 of 1998 respectively on the file of the Executing Court(Sub Judge), Krishnagiri, for attachment of the property belonging to the respondents 1 and 2 herein for realization of the amounts due under the Awards. Pending those execution petitions, it appears, that the appellant herein had filed a suit on 4/11/2008 in O.S.No.91 of 2008 on the file of the learned Principal District Judge, Krishnagiri, against the respondents 1 and 2 herein and one Ramalingam for a preliminary decree of partition of the subject matter of the property into four equal shares by metes and bounds and for allotment of one such share in her favour and for permanent injunction restraining the other co-sharers from alienating or making any encumbrance over the suit schedule properties, wherein the defendants were set ex parte. Pending the above said suit, it appears, the appellant had filed two separate Claim Petitions on 1/3/2009, which are the subject matter in the present appeals.

(3.) Appellant (claimant) filed the Claim Petitions inter alia contending that she is the elder sister of the 2nd respondent. The 1st respondent is the wife of the 2nd respondent. She was given to understand that attachment proceedings were initiated as against the respondents 1 and 2 pursuant tothe Awards passed by the Registrar of Chit Funds, Chennai. The properties in question are not the absolute properties of the respondents 1 and 2 and they are the joint family properties. In the partition alleged to have been entered into between the brothers, she was not added as a party. In the property in question, which was said to have been allotted to the share of the 2nd respondent herein, she has also a share and she is entitled to % share. Therefore, the partition said to have been effected between the brothers will not bind on the appellant. The properties are not liable for attachment as they are joint family properties and not the exclusive properties of the 2nd judgment debtor.