C. SENGOTTAIYAN Vs. K. SARAVANAN

JUDGEMENT

(1.) The petitioner is the plaintiff in O.S.No.190/2000 on the file of the Sub court, Mettur. He filed the said suit for recovery of a sum of Rs.1,17,575/- against the respondent herein based on a promissory note. Pending disposal of the suit, the plaintiff filed I.A.No.386/2000 under Order 38 Rule 5 C.P.C., and sought for attachment before the judgment in respect of a property belongs to the defendant. On notice, in the said application, the defendant appeared before the court and furnished security for production of the property as and when required by the court. The trial court by accepting the security offered by the defendant and recording the same, rejected the objections raised by the plaintiff. Thereafter, the suit came to be decreed, on merits, on 25.02.2003. Thus, a decree was granted directing the defendant to pay Rs.1,17,575/- with interest. Consequent upon such decree, the plaintiff filed execution petition in E.P.No.69/2009 under Order 21, Rule 54, 64 and 66 C.P.C. for recovery of the said decretal amount. The defendant as the respondent in the E.P. though originally filed counter on 12.09.2006 and 25.01.2007 by contending that it is an excessive execution, however by filing an affidavit counter affidavit on 04.06.2008 and informed the court that the property mentioned in the execution petition has been settled in the name of his parents through documents Nos.92 and 93/2007 and therefore, he has no transferable right in that property. The Execution Court accepting the said contention and also by finding that the said property was not attached by the court earlier during the pendency of the suit, dismissed the execution petition. Aggrieved against the said order, the plaintiff filed the above civil revision petition.

(2.) Mr.N.Manokaran, learned counsel appearing for the petitioner submitted that the respondent/defendant is not entitled to execute a settlement deed during the pendency of the execution proceedings in total violation of the security given by him in I.A.No.386 of 2000 filed under Order 38 Rule 5 C.P.C. during the pendency of the suit. Thus, it is contended that the settlement deeds executed in violation of the security given are not valid in the eye of law and consequently, the Executing Court should have proceeded against the said property for realisation of the decretal amount. It is further submitted by him that under section 145(2) of C.P.C., the court can enforce the liability of a third party surety by sale of such property to the extent of the security. He further submitted that under section 128 of the Transfer of Property Act, the parents being universal doni are liable to the debts of their son viz., the defendant. He also pointed out that the security given by the defendant is exactly in the same format as contemplated under Form No.5 executable under Order 38 Rule 5 C.P.C. Thus, what was given by the defendant, is not a mere undertaking but it is the security to the Court. He also submitted that such security given by the defendant does not require registration.

(3.) In support of his submission, the learned counsel appearing for the petitioner relied on the following decisions: