GUNASEELAN Vs. P.PERUMAL

JUDGEMENT

(1.) Challenging the order passed by the Executing Court under Order XXI Rule 97(1) and (2), the present appeal came to be filed.

(2.) Brief facts in filing this appeal are as follows:

(3.) The learned counsel for the appellants vehemently contended that the attaching creditor could only attach the right, title and interest of his debtor at the date of attachment. The order of attachment could not confer upon him any right superior to that of the judgment debtor on the date of attachment. The attachment order has not been communicated immediately from the date of attachment dtd. 19/6/2013 and it was registered before the Sub Registrar only on 12/9/2013. Before that the judgment in suit for specific performance was passed in favour of the appellant on 11/9/2013. It is the further contention that money suit filed by the first respondent is nothing but collusive one and to defeat the very agreement itself. The appellant issued legal notice on 24/1/2013 for enforcing the contract. After receipt of the legal notice, promissory note has been antedated to 12/2/2012 and the money suit has been filed on 25/3/2013. Therefore, according to her, doctrine of lis pendens will certainly apply to such case. Further the attachment order is also not communicated as mandated under Order 38 Rule 11-B of Code of Civil Procedure (High Court Amendment, Madras). Therefore, even any attachment is passed on 19/6/2013, as long as the same is not communicated, same will not bind the parties. It is well setted law that lis pendens will also apply to involuntary sale. The appellant has purchased the property in pursuant to the decree and judgment of suit for specific performance, any subsequent sale in execution of money decree will not convey any better title. This aspect has not been considered by the Trial Court. Admittedly, the appellant has also taken possession in pursuant to the EP, therefore, the Trial Court holding that lis pendens will apply against the appellant is nothing but perverse. The Trial Court has given undue importance to the draft sale deed. At the most, such sale can be challenged only by the judgment debtors and not by the third parties.