9911796707
TMI Blog2008 (9) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. Per contra, refuting the averments of the revision petitioner in the affidavit, the first respondent has filed counter, the gist and kernel of it would run thus: (i) The first respondent filed O.S.No.346 of 1992 before the Principal Sub-Court, Erode against the 2nd respondent for recovery of a sum of ₹ 1,36,000/- and that the suit was decreed on merits on 25.09.1996. Pending suit, the first respondent filed a petition for attachment before judgment in respect of the property in D.No.15, Kothukkaranpudur, Suriyanpalayam and obtained an order of attachment. The said order of attachment before judgment and the decree dated 25.09.1996 has attained finality and in view of the order of attachment, the first respondent filed E.P.No.52 of 2007 to bring the attached property for sale. (ii) One Karuppanna Gounder was the original owner of half of the property, that the other hal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner herein has filed a petition for stay in E.A.No.243 of 2008 and it was opposed on various grounds stating that the petitioner has purchased the property subsequent to the order of attachment and that the sale itself is void in law. (vi) According to the first respondent, when the claim petition is not maintainable in law, the petitioner is not entitled to get an order of stay of execution proceedings; the stay petition itself is a diabolical plan of the judgment debtor to deny the decree holder the fruits of the decree obtained by him. He further submitted that the petitioner is a transferee after an order of attachment before judgment and that he has no locus standi to maintain the claim petition; therefore, an order of stay would cause prejudice to him, especially when the case is pending from the year 1992 and he prayed for dismissal of the revision petition. 4. Heard Mr.T.Murugamanickam, learned counsel for the revision petitioner and Mr.N.Manokaran, learned counsel for the respondents. 5. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 6. Per contra, learned counsel for the respondents would submit that subsequent to the order of attachment, the vendor of the petitioner herein had purchased the property on 25.07.2000 and pending claim petition in E.A.No.242 of 2008, the petitioner has filed a petition for stay in E.A.No.243 of 2008. Learned counsel would contend that when the claim petition is not maintainable in law, the petitioner is not entitled to get an order of stay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is thus settled law that a purchaser of suit property during the pendency of litigation has no right to resist or obstruct execution of decree passed by a competent court. The doctrine of lis pendens prohibits a party from dealing with the property which is the subject-matter of suit. Lis pendens itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit. Rule 102, therefore, clarifies that there should not be resistance or obstruction by a transferee pendente lite. It declares that if the resistance is caused or obstruction is offered by a transferee pendente lite of the judgment-debtor, he cannot seek benefit of Rules 98 or 100 of Order 21. 7. I have given careful consideration to the submissions made by the learned counsel on either side and perused the materials available on record. 8. Before proceeding to analyse the case on hand, it would be worth referring to Rule 58 and Rule 58-A under Order 21 of the Code of Civil Procedure: Rule 58: Adjudication of claims to, or objections to attachment of property: (1) Where any claim is preferred to, or any objection is made to the attachment of, any prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kes it very clear that where any claim is preferred or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to adjudicate upon the claim or objection in accordance with the provisions contained therein. Also, the provisions make clear that this objection is subject to certain conditions. More so, the amended Rule 58-A also provides that the order of attachment as well as the order raising the attachment by removal, determination or removal passed under Rule 55 shall be communicated to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such order is situate. The above provisions have to be made applicable to the case on hand, but the court below, without looking into the provisions and records, particularly the Encumbrance Certificate, has simply rejected the said petition. 11. In view of the facts and circumstances of the case, this court is of the opinion that the court below has not applied its mind in deciding the application for stay and it is necessary for the parties t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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