D V RAGHAVAN Vs. A J SURESH KUMAR

JUDGEMENT

(1.) THIS civil miscellaneous appeal has been filed against the order of the learned Subordinate Judge, Kancheepuram, dismissing the application filed by the appellant in I.A. No. 503 of 1989 in O.S. No. 53 of 1989 for raising the attachment over the schedule mentioned property.

(2.) THE first respondent herein filed the suit against the second respondent herein for recovery of Rs.94,680 due on a promissory note executed on 9.10.1988. THE suit was filed on. 15.3.1989. Alongwith the plaint, the first respondent filed an application under Order 38, Rule 5 and Section 151, C.P.C. for attachment before judgment of the property belonging to the second respondent. On the same date, the learned Subordinate Judge, passed the following order: "Notice and Heard. Respondent is directed to furnish security for a sum of Rs.75, 000 failing which attachment by 13.4.89. On 22.3.89 attachment was actually effected. Alleging that he had purchased the property on 17.3.89 subject to two mortgages the appellant filed an application under Order 38, Rule 8 C.P.C. for raising of attachment. This application was opposed by the first respondent contending that the attachment order was passed as early as on 15.3.89 and knowing fully well of the attachment order, the appellant had purchased the property. THE sale deed was only a sham nominal and collusive transaction, that no consideration had passed under the sale deed, that the appellant was not a bona fide purchaser of the property, and that no grounds had been made out for raising the attachment. It was contended that even on the date of attachment it was only the second respondent who was in possession of the property. THE learned Subordinate Judge, Kancheepuram, dismissed the application holding that the sale deed had come into effect after the date of attachments that the sale was also hit by the provisions of Section 53 of the Transfer of Property Act, that it was intended to defeat the. claim of the creditors. As against this order, the present appeal has been preferred.

(3.) THE order in that case was in the following terms: 'Heard, interim attachment and notice dated 10.2.1982. THE learned Judge found that there was total non-application of mind by the lower Court in that case, that there was no non-compliance with the mandatory requirements of the relevant provisions.