K PALANISAMI Vs. R GOMATHI

JUDGEMENT

(1.) THE petitioner third party in R.E.A.No.646/94 having failed in his attempt to set aside the sale under Order 21, Rule 72 r/w 90, C.P.C. concurrently, before the Courts below has preferred this C.R.P.

(2.) THE same petitioner third party, in R.E.A.No.412 of 1994 on the file of the Subordinate Judge, Salem, having failed in his attempt, concurrently before the Courts below, to declare the attachment dated 19.8.1993 on the petition mentioned property; is illegal, void, not binding on the petitioner, has preferred this C.M.S.A., challenging the orders of the Courts below.

(3.) THIS Court, while admitting the C.M.S.A. has not formulated any substantial question of law, though an attempt was made by the petitioner/appellant to say, that there are substantial questions of law, arising for determination in C.M.S.A. In the appeal memorandum, the learned counsel for the appellant formulated two substantial questions of law and they are: (i) Is the learned District Judge correct in dismissing the EA when the attaching creditor cannot ignore the obligation under the agreement to sell and proceed to bring the property to sale as if it remained the absolute property of the Judgment Debtor ? (ii) Is the learned District Judge correct in dismissing the application when the agreement to sell will prevail over the attachment as the pre-attachment agreement to sell is in respect of ownership of land whereas attachment is only of right, title and interest of the judgment debtor ?