T. KUMARESAN Vs. STELLABAI AND ORS.

JUDGEMENT

(1.) This appeal has been filed by the appellant against the judgment and decree dated 18.08.2017 passed in C.M.A. No. 28 of 2016 by the District Court, Kanyakumari District at Nagercoil, whereby and whereunder the Court below has reversed the finding of the trial Court in E.A. No. 73 of 2015 in E.P. No. 65 of 2008 in O.S. No. 41 of 2005 based on the joint Compromise memo and allowed E.A. No. 73 of 2015 filed for raising attachment of 2 item of property and directed to issue intimation with regard to raising of attachment of item No. 2 of the property to the Registration Department and further directed to register the Document No. 25 of 2006 alleged to have been executed between the appellant herein and the 3 respondent herein in respect of the 2 item of property as per law.

(2.) The first respondent herein as plaintiff has filed the suit in O.S. No. 41 of 2005 for recovery of Rs. 1,35,000/- with future interest against one T. Murugesan/original defendant, who is the husband of the 2 respondent herein. During the pendency of the trial, two items of properties of the original defendant were attached before judgment in I.A. No. 144 of 2005 on 12.08.2005 at the instance of the first respondent/plaintiff. The suit was decreed as prayed for on 12.06.2006. The first respondent/plaintiff/decree holder filed execution petition in E.P. No. 65 of 2008 for recovery of the decree amount by bringing the attached properties for sale. While so, the appellant herein/3 party filed E.A. No. 79 of 2012 stating that the original defendant/judgment debtor has sold the 2 item of the property to him much before the attachment before judgment on 06.08.2004 and he, in turn, executed a sale deed in favour of the 3 respondent herein, but the same has been returned in view of the order of attachment and therefore, the attachment of the 2 item of property may be raised. But, the said application was dismissed for default on 12.12.2014. Subsequently, the 3 respondent herein filed E.A. No. 73 of 2015 stating that he is the purchaser of entire second schedule from the appellant herein on 15.03.2006 for a total sale consideration of Rs. 60,984/- and due to attachment order, the Sub Registrar, Eraniel, returned the document No. 25 of 2006 and as he has paid valid sale consideration and he is interested in the 2 item of property, he sought to raise the 2 item of property from attachment. During the pendency of the said petition, the original defendant died and hence, the present 2 respondent was bring on record as the sole legal heir.

(3.) The trial Court has dismissed E.A. No. 73 of 2015 holding that though the sale deed was returned on 15.03.2006, the petitioner/third respondent has belatedly filed this petition and the petition was not filed with good intention. Aggrieved by the same, the 3 respondent herein filed C.M.A. No. 28 of 2016. Before the first appellate Court, the first respondent herein/plaintiff and the third respondent herein filed a joint compromise memo and based on the same, the first appellate Court has set aside the order passed by the trial Court in E.A. No. 73 of 2015 and directed to issue intimation with regard to raising of attachment of 2 item of the property to the Registration Department and further directed to register the Document No. 25 of 2006 alleged to have been executed between the appellant and the 3 respondent herein in respect of the 2 item of property as per law. Aggrieved by the last portion of the order passed by the first appellate Court to the effect that "the pending sale deed in favour of the 3 respondent/appellant ie., Document No. 25/2006 of Sub Registrar's Office, Eraniel is to be registered as per law"?, the appellant has filed this second appeal.