S S KARTHIKEYAN Vs. SIVASALAM

JUDGEMENT

(1.) THIS revision is preferred against the fair and final order dated 06.08.2008 made in E.A.No.243 of 2008 in E.P.No.52 of 1997 in O.S.No.346 of 1992 on the file of the I Additional Sub Court, Erode.

(2.) THE portrayal and parodying of the case of the revision petitioner, as stood exposited from the affidavit would run thus: THE properties originally belonged to one Ramayammal she along with her son executed a Power of Attorney deed in favour of M. Kavundaiappa Gounder the power holder sold the petition mentioned property to one Amrithdevi Pandey and another under a sale deed dated 25.07.2000 thereafter, the said Amrithdevi Pandey and others through their Power of Attorney, A. Sivakumar sold the said properties in his favour under a registered sale deed dated 15.04.2004. It is the further case of the petitioner that he purchased the property after proper verification of the Encumbrance Certificate for a period of 18 years. According to the petitioner, he being a bonafide purchaser of the properties, without notice to him about the transactions, the properties have been sold. Hence, he has come up before this court for stay of the sale proceedings and to set aside the order passed by the Execution Court.

(3.) LEARNED counsel for the revision petitioner would pithily submit that the court below ought to have exercised the jurisdiction vested in it and allowed the application, considering that the petitioner's application under Order 21 Rule 58 C.P.C, in which the title of the petitioner and the right of the decree holder to bring the petition mentioned properties is pending before the same court. He would also submit that the court below ought to have seen that the petitioner is a bona fide purchaser for value and therefore, the presumption that he is colluding with the judgment debtor is unwarranted and not based on any evidence on record. It is also his contention that the court below failed to see that the order of attachment over the petition mentioned property was not reflected in the Encumbrance Certificate applied for by the petitioner when he purchased the petition mentioned property.5a. To support his case, learned counsel for the petitioner has placed reliance on the judgments rendered by this Court, relevant portion of which is extracted here under:(a) 1997 (I) MLJ 115 (P. Duraisamy vs. Sri Mahalakshmi Finance)".3. When a claim petition has been filed claiming right in the property, naturally, till such dispute is settled, stay of further proceedings in the E.P. Has to be made. But in this case the lower court has almost given a finding in the stay petition which finding is necessary for the disposal of the claim petition. Keeping the claim petition pending, it is not proper for the court below to dismiss the stay petition for the reasons that would be relevant for the dismissal of the claim petition itself."(b) 2000 (II) CTC 524 (Sri Krishna Chit Funds (Sattur Private Limited), Sattur)".23. To sum up it is clear that both the Courts below failed to take note of Ex.P11 in which even though proper return endorsement had been made by the sub Registrar's office, Sattur and sent to the Sub Court, there is no evidence to show that it was properly complied with and the order of attachment was re-communicated to the sub Registrar's office. When once the intimation had been returned back and when there is no evidence that the same was re-communicated with required and correct particulars, there is no possibility of the order of attachment being entered in the concerned registers maintained in the Office of the Sub Registrar and in the Encumbrance Certificate. Only if the said intimation was sent in accordance with the rules and if it was accepted by the Sub Registrar's Office as correct, then only the particulars as to attachment before judgment will/be entered in the encumbrance certificate....The evidence amply show that the appellant is a bona fide purchaser for value and in the absence of any entry in the registers maintained by the Sub Registrar-s Office, Sattur where the land in question situate the appellant was not aware of the order of attachment before judgment. I accept the contention that both the Courts below failed to note that mandatory provisions under Order 21, Rule 58-A and Order 38, Rule 11-B were not complied with and I hold that the claimant-appellant has established his case to set aside the order of attachment made in I.A.No.117 of 1997 in O.S.No.18 of 1997 on the file of Subordinate Judge, Sivakasi.'.