AYYANAR Vs. KUPPAMMAL AND OTHERS

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal has been preferred against the Judgment and Decree in A.S.No.16 of 2008 dated 30.04.2009 on the file of the Principal District Judge, Villupuram reversing the Judgment and Decree in E.A.No.78 of 2004 in E.P.79 of 2000 in O.S.No.129 of 1998 dated 09.10.2006 on the file of the Principal Subordinate Judge, Tindivanam.

(2.) The brief facts of the petition in E.A.78 of 2004 is that the property in Item " A" in the petition is the second respondent's Joint Family property and Sale agreement was entered with regard to the " A" schedule property on 13.06.2000 and on the same day, the property was also handed over to the petitioner. Hence, after 13.06.2001, the petitioner along with his minor sons got the property registered and from on that date, they are in possession and enjoyment of property. Further, the petitioner has stated that " B " schedule property belongs to the third respondent. On 13.10.1997, the sale agreement was made but the said " B " schedule property belongs only to the third respondent by way of settlement. Based on the agreement, the first respondent filed a suit against the second and third respondents and he obtained an ex-parte decree on 25.11.1999 only for the advance amount. Based on the said decree passed for the recovery of advance amount , execution petition was filed and the said " A" scheule property was attached by the court but the said " A " schedule property is not a property which is the subject matter of the Sale Agreement dated 13.10.1997. Only, out of grudge, the petitioners have attached the property which is not covered in the sale agreement dated 13.10.1997. Actually, the respondent should have proceeded only against the property that belongs to the third respondent but only with a view to give trouble and inconvenience to this petitioner, the property, which is not covered in the Sale Agreement dated 13.10.1997 was attached. Further, this petitioner has stated that after the sale, they were residing in Olakkur village and they are totally unaware of the E.P.proceedings taken by the first respondent and only recently, they came to understand that the properties are brought for sale and on enquiry dated 22.03.2003, the second and third respondents filed a petition to set aside the ex-parte decree. Though this petitioner purchased the property in a proper way, the respondents colluded together to act against the petitioner. This petitioner has filed petition to release the property that was attached in the E.P. Hence, it is the averment of the petitioner that there is no attachment of " A" schedule property , on the date of sale by this petitioner. Further, the respondents cannot attach the ? .. "rd share of the minors. Hence, on the whole, the grievance of the petitioner is that the petition mentioned property is not a property involved in the suit. The respondents have to proceed against the " B " schedule property alone whereas they have proceeded against " A " schedule property, which is against law. Only after verifying that there is no encumbrance on the " A " schedule property, he entered into an agreement and purchased the same. Hence, the attachment of the said property and bringing the same for sale is contrary to the law.

(3.) In his Counter Statement, the first respondent denied the facts regarding the sale of petition mentioned property on 13.06.2000. Further, the first respondent also totally denied the sale agreement made on 13.06.2000. It is also stated by the first respondent that he is the son of Judgment Debtor. The second petitioner is the sister of Judgment Debtor's wife. Hence, the attachment proceedings are very much known to them. Only to defeat the right of this respondent, the sale has been created. Further, the petitioner has made the sale fully knowing the proceedings of the case. Hence, the sale is not a bonafide one. Further, in said petition property, the third respondent has no exclusive rights, already the defendents have only right of enjoyment over the suit property. This respondent filed the suit only for the amount that he is entitled. Hence fully knowing the auction details, earlier the version of the petitioner that he come to be know about the same only on 22.03.2003 is a false one. This respondent has taken auction proceedings only against the properties that belong to second respondent. Hence, the petition filed by the petitioner is not maintainable and the auction proceedings need not be stayed.