3.A.Guruvappan ... 3rd Respondent in C.R.P.(PD) (MD) No.1962 of 2009 PRAYER (C.R.P.(PD) (MD) No.1962 of 2009): Civil revision petition is filed, under Article 227 of the Constitution of India, to set aside the order passed in I.A.No.430 of 2006 in I.A.No.249 of 2006 in O.S.No.151 of 2006, on the file of the Principal Subordinate Judge, Madurai, dated 29.09.2009. http://www.judis.nic.in 2 PRAYER (C.R.P.(PD) (MD) No.1963 of 2009): Civil revision petition is filed, under Article 227 of the Constitution of India, to set aside the order passed in I.A.No.430(A) of 2006 in O.S.No.151 of 2006, on the file of the Principal Subordinate Judge, Madurai, dated 29.09.2009.
The civil revision petition in C.R.P.(PD) (MD) No.1962 of 2009 is directed against the fair and decreetal orders, dated 29.09.2009, passed in I.A.No.430 of 2006 in I.A.No.249 of 2006 in O.S.No.151 of 2006, on the file of the Principal Subordinate Court, Madurai.
2. Similarly, the civil revision petition in C.R.P.(PD) (MD) No.1963 of 2009 is directed against the fair and decreetal orders, dated 29.09.2009, passed in I.A.No.430-A of 2006 in O.S.No.151 of 2006, on the file of the Principal Subordinate Court, Madurai.
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3. Material placed on record go to show that the first respondent herein had laid the suit, in O.S.No.151 of 2006, against the second respondent and one A.Guruvappan, for recovery of money, briefly on the footing that the second respondent had borrowed a sum of Rs.2,00,000/- from the said A.Guruvappan / 2nd defendant in the abovesaid suit, on 15.07.2005, to meet out his family expenses and to discharge the sundry debts and executed a promissory note on the same date, agreeing to repay the same with interest as recited therein and further, it is also stated that the said A.Guruvappan had borrowed a sum of Rs.2,00,000/-, on 18.08.2005, from the first respondent herein to meet out his family expenses and to discharge the sundry debts and endorsed the promissory note, dated 15.07.2005 abovestated by making over the same in favour of the first respondent herein on 18.08.2005 and thereby, it is stated that despite the repeated demands, the second respondent herein had not paid any amount towards the borrowed sum and accordingly, it is stated that the first respondent had been constrained to lay the suit against the both second respondent / first defendant and A.Guruvappan / second defendant.
4. It is also noted that along with the abovesaid suit, the first respondent herein had levied an application, in I.A.No.249 of 2006, under Order XXXVIII Rule 5 and Section 151 of the Code of Civil Procedure, to pass http://www.judis.nic.in 4 an order directing the second respondent to furnish security for the suit amount, within a particular period of time, as may be determined by the Court below, failing which, sought for the attachment of the property described in the application before Judgment. It is noted that in the abovesaid application preferred by the first respondent for attachment before Judgment, the attachment was ordered on 09.06.2006 and also the same had been recorded. Furthermore, it is also seen that the second respondent and A.Guruvappan had not entered appearance in the suit and thereby, they had been set ex parte.
5. At that stage of the matter, it is found that the revision petitioner had laid the abovesaid applications seeking to get herself impleaded in the main suit i.e., O.S.No.151 of 2006 and also sought for the setting aside of the order of attachment passed in I.A.No.249 of 2006, on the footing that the abovesaid suit laid by the first respondent against the second respondent and A.Guruvappan is a collusive suit in order to defeat her right as well as her son's right in respect of the amounts due to them from the second respondent and it is stated that the revision petitioner's son V.Prakash had levied a suit, in O.S.No.211 of 2006, for recovery of money, against the second respondent herein, on the file of the Principal District Munsif Court, Madurai, and also filed an application, in I.A.No.169 of 2006, under Order XXXVIII Rule 5 of the http://www.judis.nic.in 5 Code of Civil Procedure, seeking attachment of the property belonging to the second respondent before Judgment and the abovesaid suit and the application are pending enquiry and furthermore, also stated that the second respondent had preferred an insolvency petition, in I.P.No.8 of 2006, on the file of the III Additional Subordinate Court, Madurai, in which, the revision petitioner had been impleaded as the seventh respondent and in the abovesaid insolvency petition, inclusive of the property covered in I.A.No.430A of 2006, the second respondent had shown the property belonging to him in C- Schedule of the abovesaid application and therefore, it is stated that inasmuch as the first respondent, in collusion with the second respondent and A.Guruvappan with a view to defeat the right of the revision petitioner as well as her son in respect of the amounts due to them from the second respondent, had fraudulently laid the suit in O.S.No.151 of 2006, accordingly, contending that she is also a proper and necessary party to decide the issues involved in the suit in O.S.No.151 of 2006 and also inasmuch as she had no other means, except to proceed against the properties belonging to the second respondent for the recovery of money due to her and her son and as the second respondent's property had been attached in I.A.No.249 of 2006, consequently, prayed for the setting aside of the order of attachment passed in respect of the second respondent's property and accordingly, prayed for the appropriate orders.
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6. The abovesaid applications of the revision petitioner had been stoutly resisted by the first respondent herein contending that the abovesaid applications preferred by the revision petitioner are not maintainable either in law or on facts and if at all the second respondent is due any sum to the revision petitioner, the revision petitioner is only entitled to proceed against the second respondent in respect of the recovery of money, in the manner known to law and in such view of the matter, when the revision petitioner noway connected with the issues involved in the suit laid by the first respondent, she is neither a proper nor necessary party and accordingly, prayed for the dismissal of the abovesaid applications.
7. The Court below, on a consideration of the rival contentions putforth by the respective parties, deemed it fit to dismiss both the applications. Impugning the same, the present civil revision petitions have been preferred.
8. The suit, in O.S.No.151 of 2006, had been laid by the first respondent against the second respondent and one A.Guruvappan for recovery of money. In the application preferred by him, in I.A.No.249 of 2006, seeking attachment of the property belonging to the second respondent before Judgment, the Court below had ordered attachment and the same is also found to have been recorded. At that stage of the matter, the abovesaid applications had been http://www.judis.nic.in 7 preferred by the revision petitioner on the footing that inasmuch as the second respondent owes money to her and her son and accordingly, her son had also levied a suit against the second respondent and also preferred application for attachment of his property before Judgment and furthermore, contending that the second respondent had preferred I.P.No.8 of 2006 for declaring him as insolvent, impleading the revision petitioner as one of the respondents therein, contending that if the first respondent is allowed to proceed against the property belonging to the second respondent following the attachment effected in I.A.No.249 of 2006, she and her son would be unable to realize the amounts due to them from the second respondent and accordingly, seeking to implead herself in the suit as well as the attachment effected in respect of the property belonging to the second respondent in I.A.No.249 of 2006, the abovesaid applications had come to be preferred by the revision petitioner.
9. The main defence putforth by the first respondent is that if at all any sum is due to the revision petitioner from the second respondent, the only course available to her is to initiate necessary legal action against the second respondent as per law and accordingly, when she is an alien to the issues involved in the suit laid by the first respondent, in O.S.No.151 of 2006, against the second respondent and A.Guruvappan, she being neither a proper nor necessary party, accordingly prayed for the dismissal of the applications. http://www.judis.nic.in 8
10. As rightly determined by the Court below, only on the footing that the property belonging to the second respondent had been attached before Judgment, in O.S.No.151 of 2006, it is found that the revision petitioner had preferred the abovesaid applications and however, as rightly putforth by the first respondent's counsel as well as determined by the Court below, if really any amount is due to the revision petitioner from the second respondent, it is always open to her to proceed against the second respondent in the manner known to law as well as his properties and on the other hand, when it is found that the revision petitioner is nowhere connected with the issues involved in O.S.No151 of 2006, the Court below is fully justified in dismissing the impleading application preferred by the revision petitioner. Furthermore, merely because the second respondent had preferred insolvency proceedings and also listed his properties in the abovesaid petition, that by itself would not deprive the first respondent to proceed against the properties belonging to the second respondent in the suit preferred by him for recovery of money due to him from the second respondent. The contention putforth by the revision petitioner that the abovesaid suit laid by the first respondent against the second respondent and A.Guruvappan is a collusive one and brought out with the aim of defeating her lawful amount due from the second respondent, however, when with reference to the same, there is no material forthcoming http://www.judis.nic.in 9 worth acceptance and when it is seen that A.Guruvappan has also been added as a respondent in the insolvency proceedings initiated by the second respondent and furthermore, when the revision petitioner's son has not been shown as a respondent in the abovesaid insolvency proceedings, it is found that when according to the first respondent, he had laid the suit against the second respondent, based on the assignment of the promissory note in his favour by A.Guruvappan for the amount due to the first respondent from A.Guruvappan and when A.Guruvappan is shown as one of the respondents in the insolvency proceedings, in all, it is found that when there is no impediment for the various creditors to proceed against the properties belonging to the second respondent, in the manner known to law, for the amount due to them, in all, it is found that the revision petitioner's contention that the attachment effected in respect of the property belonging to the second respondent is liable to be set aside as prayed for, had been rightly discountenanced by the Court below.
11. Furthermore, merely because the second respondent and A.Guruvappan had remained ex parte in the suit proceedings of the first respondent, that by itself would not lead to the conclusion straightaway that the suit laid by the first respondent is a collusive one as putforth by the revision petitioner.
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12. In all, the Court below is found to have analyzed the rival contentions putforth by the respective parties as per law and also on facts, in the correct perspective and dismissed the applications preferred by the revision petitioner. In such view of the matter, when the impugned orders of the Court below do not warrant any interference, resultantly, the civil revision petitions preferred by the revision petitioner are dismissed with costs. Consequently, connected miscellaneous petition is closed.
19.12.2018 Internet : Yes / No Index : Yes / No krk To: The Principal Subordinate Judge, Madurai. http://www.judis.nic.in 11 T.RAVINDRAN, J. krk COMMON ORDER IN C.R.P.(PD) (MD) No.1962 of 2009 and M.P.(MD) No.1 of 2009 and C.R.P.(MD) No.1963 of 2009 19.12.2018 http://www.judis.nic.in