C.S. Mani(Dead) by
Lr. Vs. B. Chinnasamy Naidu(Dead)Through LRS.  INSC 689 (31 August 2010)
Reportable IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5798 OF
2002 C.S.Mani (deceasad) by LR C.S.Dhanapalan ... Appellant B.Chinnasamy Naidu
(deceased) by LRs ... Respondent
obtained a money decree for Rs.4200/- against one Mokshammal on 28.2.1972. He
levied execution (EP No.466/1974) in respect of the said decree, wherein the
suit property (agricultural land measuring 2 acres 22 cents) and two other
properties (which are not the subject matter of present proceedings) belonging
to Mokshammal were attached on 29.12.1974.
Tamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1975 (`Debt Relief
Act' for short) enacted by the Tamil Nadu Legislature came into force with
effect from 10.1.2005. Section 4 of the said Act stayed all further proceedings
in applications for execution of decrees in which relief was claimed against an
agriculturist until the expiry of one year from the date of commencement of the
said Act. The proviso thereto enabled the court to pass such orders as it
deemed necessary for custody or preservation of the property under attachment.
As Mokshammal was an `agriculturist' as defined under the said Act, the
execution proceedings in regard to the decree obtained by the appellant against
her were closed, by order dated 15.2.1975.
The moratorium period
of one year under the Debt Relief Act was subsequently extended from time to
time till 14.7.1979.
the moratorium period ended, the appellant initiated execution proceedings
afresh (EP No.276 of 1980). As the suit property had already been attached on
29.12.1974 in the earlier execution proceedings, and that attachment continued
even during the moratorium period, the appellant did not seek any fresh
attachment. In the said execution proceedings the attached suit property was
brought to sale. At the court auction sale held on 6.6.1984, the appellant
purchased the suit property. The auction sale in favour of 3 appellant was
confirmed on 30.7.1985 and a sale certificate was issued to him. According to
appellant possession of the suit property was also delivered to him through
court on 10.9.1985.
judgment debtor Mokshammal filed an application under section 47 of the Code of
Civil Procedure (`Code' for short) to set aside the sale.
The sale was set
aside on 10.1.1986. However the appeal filed by the appellant against the said
order was allowed by the Subordinate Judge and by order dated 15.3.1993 the
order of the executing court dated 10.1.1986 setting aside the sale was
reversed. The revision petition filed by Mokshammal against the said order was
dismissed on 5.10.1993. Thus the attempts by Mokshammal to get the sale set
aside failed and the auction sale attained finality.
the meanwhile, the Judgment-Debtor Mokshammal sold 75 cents out of the suit
property to one Chandra on 17.2.1978 who in turn sold it to Kiliammal on
19.8.1981. The remaining 1.47 acre was also sold by Mokshammal to one Chand
Basha under another sale deed dated 18.12.1980. Chand Basha and Kiliammal sold
their respective portions measuring 1.47 acres and 75 cents to the respondent
under sale deeds dated 4 27.1.1982 and 6.3.1982. Respondent thus claimed to be
the owner in possession of the suit schedule property measuring 2 acres 22 guntas.
The respondent filed a suit in the court of District Munsiff, Tiruvallur
(O.S.No. 458/1985) against the appellant seeking a declaration of his title
over the suit property and for a permanent injunction to restrain the appellant
from interfering with his possession over the same. In the said suit, the
respondent contended that on the enactment of the Debt Relief Act, the
execution against Mokshammal was closed on 15.2.1975 and as a result the
attachment dated 29.12.1974 over the suit property came to an end; and
therefore when portions of suit property were sold by Mokshammal to Chandra and
Chand Basha or when the suit property was subsequently sold to him on 27.1.1982
and 6.3.1982, it was not subject to any attachment and therefore he became the
absolute owner thereof. He further contended that the court sale in execution
on 6.6.1984 in favour of the appellant, was on the erroneous premise that the
suit property was under attachment; and that as the attachment had ceased on
15.2.1975, the auction sale was null and void.
He also asserted that
he was in possession of the suit property and the claim of the appellant that
possession was delivered to him on 10.9.1985, was false and incorrect. The suit
was contested by the appellant. The trial court dismissed the suit by judgment
and decree dated 7.11.1997, holding that the 5 sale deeds in favour of
respondent were not valid and the appellant was in possession of the suit
property. The respondent filed an appeal challenging the judgment and decree of
the trial court, and the first appellate court by judgment dated 5.8.1998
dismissed the appeal. The trial court and the first appellate court
concurrently found that the attachment effected on 29.12.1974 was not
raised/withdrawn/determined and it had continued till the sale of the property
in the court auction on 6.6.1984 and therefore the sale in favour of appellant
was valid and the sales effected by Mokshammal during the subsistence of the
attachment were invalid.
aggrieved, the respondent filed a second appeal. The High Court allowed the
second appeal and set aside the judgment and decree of the first appellate
court, and decreed the suit for declaration of title and injunction filed by
the respondent. The High Court held that when the Debt Relief Act came into
force, the executing court had closed the execution proceedings on 15.2.1975
with an observation that the attachment to continue for a period of six months,
and at the end of six months the attachment came to an end and was not revived
or renewed and consequently when Mokshammal sold the suit property on 17.2.1978
and 18.12.1980 in two portions to Chandra and Chand Basha, the suit property
was not subject to any attachment and consequently, the respondent who had 6
purchased the suit property from Chandra's successor Killiammal and Chand
Basha, was the owner of the suit property. It held that the court sale dated
6.6.1984 and consequent sale certificate did not convey any title to the
appellant, as there was no attachment as on the date of sale and Mokshammal did
not have any interest in the suit property on the date of auction sale. The
said judgment is challenged in this appeal.
regarding determination of attachment
of the modes of enforcing execution of a money decree is by attachment and sale
of the property of the judgment-debtor. (Vide Sec.51(b) of the Code).
Attachment of an immovable property is made by an order prohibiting the
judgment-debtor from transferring or charging the property in any way, and all
persons from taking any benefit from such transfer or charge (Vide Order 21
Rule 54 of the Code). Section 64 of the Code of Civil Procedure provides that
private alienation of property after attachment is void and sub-section (1)
thereof is extracted below :
alienation of property after attachment to be void.--(1) Where an attachment
has been made, any private transfer or delivery of the property attached or of
any interest therein and any payment to the judgment-debtor of any debt,
dividend or other money contrary to such attachment, shall be void as against
all claims enforceable under the attachment."
attachment of an immovable property effected in execution of a decree, will
continue until the said property is sold and the sale is confirmed, unless it
is determined or removed on account of any of the following reasons:
(i) By deemed
withdrawal under Rule 55 Order 21 of the Code, that is, where the attachment is
deemed to be withdrawn on account of (a) the amount decreed with all costs, charges
and expenses resulting from the attachment being paid into court; or (b)
satisfaction of the decree being otherwise made through the court or is
certified to the court; or (c) the decree being set aside or reversed.
(ii) By determination
under Rule 57 Order 21 of the Code, that is, after any property has been
attached in execution of a decree, the court passes an order dismissing the
application for execution of the decree, but omits to give a direction that the
attachment shall continue. (When an execution application is dismissed, for
whatsoever reason, the court is required to direct whether the attachment shall
continue or cease and shall also indicate the period up to which the attachment
shall continue or the date on which such attachment shall cease).
(iii) By release of
the property from attachment under Rule 58 Order 21 of the Code, that is when
any claim is preferred to the property attached in execution, or any objection
is made to the attachment, on the ground that the 8 property is not liable to
such attachment and the court, on adjudication of the claim or the objections,
releases the property from attachment.
(iv) By operation of
law, that is, on account of any statute declaring the attachment in execution
shall cease to operate, or by the decree (in respect of which the property is
attached) being nullified, or by the execution being barred by the law of
(v) By consent of
parties, that is, where the decree holder and the judgment debtor agree that
the attachment be withdrawn or raised.
the contentions raised, two questions arise for our consideration in this
the attachment of the suit property on 29.12.1974 continued after the closure
of the execution petition on 15.2.1975, till the auction sale on 6.6.1984 and
confirmation of sale on 30.7.1985; and consequently the sales by Mokshammal on
17.2.1978 and 18.12.1980 as also the sales by her transferees to respondent
the attachment of the suit property ceased on 15.8.1975, on the expiry of six
months from the date of closure of the execution proceedings, in view of the
intervention of the Debt Relief Act and the order 9 of closure dated
15.2.1975; and consequently the sales by Mokshammal on 17.2.1978 and 18.12.1980
were valid, and the auction sale in favour of the appellant was invalid ? Re :
is no dispute that the suit property was attached on 29.12.1974 in the
execution proceedings initiated by the appellant against Mokshammal, in regard
to the money decree obtained by him. Therefore any private transfer or delivery
of the attached property, by Mokshammal during the period when the attachment
was in force, was void as against all claims enforceable under the attachment
by the appellant. As noticed above, an attachment, once made in execution of a
decree, will continue till the completion of the sale, unless determined by any
of the methods mentioned in para (8) above. It is not the case of the
respondent that there was determination of the attachment on account of any of
the grounds specified in Rule 55 or Rule 58 of Order 21 of the Code. There was
also no agreement to raise the attachment nor any application for withdrawing
remains to be considered whether there was determination of attachment under
any of the circumstances mentioned in paras (ii) and (iv) of para 8 above.
is clear from Rule 57 of Order 21 of the Code that where the court `dismisses'
the application for execution of the decree, the attachment effected in
execution, shall cease unless the court indicates that the attachment shall
continue. But where the execution petition is adjourned `sine die' or closed on
account of any moratorium or stay of the execution under a statute, or by an
order of stay by any court, there is no "dismissal" of the execution
application. Similarly where the execution application is closed without any
specific cause, apparently for purposes of statistical disposal, there is no
"dismissal" of the execution application. An execution application is
`dismissed' when (i) the execution is dismissed as a consequence of the decree
being found to be null and void or inexecutable (as contrasted from any
temporary eclipse of the decree); or (ii) the execution is dismissed on the
ground of any default on the part of the decree-holder.
execution application of the appellant was closed on 15.2.1975 in view of
Section 4 of the Debt Relief Act staying executions against agriculturists. The
stay of further proceedings in execution under section 4 of the Debt Relief Act
was only for a specified limited period. The proviso 11 to section 4 clearly
implied that any attachment made in such stayed execution proceedings shall
continue to be in effect, by providing that the court will have to pass if
necessary the orders for custody or preservation of the attached property
during the pendency of stay under the Debt Relief Act.
enactment of the Debt Relief Act did not determine the attachment. What was
stayed or kept in abeyance during the period when the statutory stay of
execution operated, was not the attachment, but the further proceedings in
pursuance of the attachment, that is, sale of the attached property. On the
expiry of the moratorium period under the Debt Relief Act on 17.10.1979, the
decree holder became entitled to continue the execution by proceeding with the sale.
There is thus no question of determination or withdrawal of attachment, nor any
question of `eclipse of attachment' during the period when the statutory stay
under the Debt Relief Act, nor any `revival' of attachment thereafter.
Attachments in execution, already effected, continued and were in effect,
during the entire period of stay of execution by the Debt Relief Act. The
alienations by Mokshamal under sale deeds dated 17.2.1978 and 18.2.1980 were
therefore void as against the claim enforceable under the attachment obtained
by appellant, having regard to Sec. 64 of the Code. As the attachment obtained
by the appellant continued, the sale in his favour was valid and the sales by
Mokshammal 12 were invalid.
Re : question (ii)
contention of the respondent is that even if the attachment was not determined
on account of the enactment of the Debt Relief Act, the executing court which
passed the order of attachment on 29.12.1974 had subsequently made an order on
15.2.1975 closing the execution with an observation that the "attachment
to continue for six months" thereby making it clear that the attachment
would came to an end on 15.8.1975. It was submitted that there was no order
extending the attachment after the expiry of the said six month period. It was
submitted by the respondent that even assuming that the said order dated
15.2.1975 was erroneous, it was binding and valid as it was not got modified or
set aside and had attained finality;
and consequently when
the sale was effected by Mokashammal on 17.2.1978 and 18.12.1980 in respect of
portions of the suit property, there was no subsisting attachment. On the other
hand, the appellant contends that on 15.2.1975, the executing court, while
closing the execution in view of the stay of execution proceedings by the Debt
Relief Act, had made it clear that the attachment will continue. According to
them the order made by the 13 executing court while closing the execution
proceedings on 15.2.1975 was "Defendant in an agriculturist - EP is closed
- attachment to continue".
the order of the executing court while closing the execution, was `attachment
to continue', the attachment would have continued in spite of the closing of
the execution proceedings. Even if the executing court had closed the execution,
in view of the statutory stay, without any specific order continuing the
attachment, the attachment would not have ceased as there was no `dismissal' of
execution under Order 21 Rule 57 of the Code. But if the order dated 15.2.1975
had stated `attachment to continue for six months', whether right or wrong, the
attachment would have come to an end on the expiry of six months from
15.2.1975, unless it was continued by any subsequent order, or had been
modified or set aside by a higher court. What then was the order that was
passed on 15.2.1975?
is significant that the respondent in his plaint (in OS No. 458/1985) never
stated that that order dated 15.2.1975 closing the execution proceedings,
continued the attachment for only six months. On the other hand his specific
case was that the attachment came to an end on account of the execution being
closed on 15.2.1975 by reason of the Debt Relief Act.
We extract below the
relevant averments from the plaint :
14 "While the
E.P. Proceedings were in progress Government passed Debt Relief Act for the
relief of agriculturists and by virtue of which all further proceedings against
agriculturists were either stayed or dismissed. The E.P. No.466/74 was also
closed on 15.2.75 with the result the attachment came to an end."
Nearly a decade
later, the respondent filed by way of an additional document in the said suit,
the suit register extract relating to order dated 15.2.1975 which read as
Amended as per Office
Note dated 19.7.1995:
"Defendant is an
agriculturist - E.P. is closed - attachment to continue for 6 months".
The certified copy of
the order dated 15.2.1975 obtained by the appellant (prior to 19.7.1975 when
the amendment was made) read: "Defendant is an agriculturist - E.P. closed
- attachment to continue." The said order dated 15.2.1975 was corrected
twenty years later on 19.7.1995 by adding the words "for six months"
at the end, thereby converting the attachment which was to continue without any
specific time limit, as one to end on the expiry of six months. The said
correction was by way of an office note and without notice to the appellant.
The appellant therefore filed a civil revision petition before the High Court
challenging the amendment to the order dated 15.2.1975 made on 19.7.1995 by way
of an office note, converting the words "attachment to continue" to
"attachment to continue for 6 months".
High Court allowed the said revision petition by order dated 22.12.1995. It
found that the correction had been made after 20 years on 19.7.1995, allegedly
after obtaining a clarification from the Presiding Officer; and that it was not
known how and on what basis such a clarification could be obtained after 20
years and on what authority the person who was the Presiding Officer on
15.2.1975 could issue any clarification after the order, and how the order
could be amended after 20 years, that too without giving an opportunity to the
appellant to oppose the same. The court therefore allowed the revision petition
with the following observations and directions :
"3. It is
absolutely necessary that whenever a clerical mistake is to be corrected, such
corrections cannot be made behind the back of the parties and the parties must
be given an opportunity, explaining the clerical mistake and the circumstances
under which the corrections are to be made.
Hence the amendment
made pursuant to the office note dated 19.7.1995 with regard to the suit
register in O.S.No.29/71 cannot be sustained.
Accordingly, the same
is set aside.
4. The Civil Revision
Petition is allowed and the matter is remitted to the Lower Court for fresh
disposal according to law. The Lower Court is directed to give notice to the
both parties in respect of the clarification required and the amendment to be
made and thereafter pass orders regarding the amendment of the suit register,
on such remand by the High Court, the executing court did not hold any enquiry,
nor gave any hearing to parties as directed by the High Court. On the other
hand a rather strange communication dated 18.9.1996 16 was addressed by the
learned District Munsif to the learned counsel for the appellant and respondent
"This is to
inform you that regarding the order in E.P.No.466 of 1974 in O.S.No.29 of 1971,
the doubt was cleared for the last order in E.P. by the then Presiding officer
by his letter dated 29.10.1985 i.e., "Defendant is an Agriculturist. E.P.
is closed. Attachment to continue for 6 months". The same was omitted to
be carried out in the Suit Register by mistake on 29.10.1985 itself. Hence
office note put up on 19.07.1995 and as per order of District Munsif the same
was carried out in the suit register, after giving notice to the petitioner's
advocate Thiru S.Chandramouli in this Court's Memo in D.No. 393 dated
Now as per High
Court's direction in C.R.P.No.2864 of 1995 dated 22.12.1995 this fresh notice
is given to both the Advocates for making correction in the suit register as
well as in the certified copies if any obtained by the Advocates.
Hence both side
advocates are directed to produce the certified copies in E.P.No.466 of 1974 in
O.S.No.29 of 1971 (Suit Register Extract) on the file of this Court for making
correction with in a week's time."
High Court, while allowing the second appeal of the respondent by the impugned
judgment, has read the said notice as an "order" reiterating the
amendment made on 19.7.1995. The High Court has therefore proceeded on the
basis that by order dated 15.2.1975, the executing court had closed the
execution proceedings in view of the enactment of the Debt Relief Act and
continued the attachment only for six months and thereafter there was no
attachment and therefore the sales by Mokshammal on 17.2.1978 and 18.12.1980
were valid and the court auction sale in favour of the appellant was invalid.
The High Court clearly erred. Firstly when the Debt Relief Act 17 had clearly
indicated that the attachment will continue during the period when the
execution proceedings were stayed, it is understandable how the executing court
could make an order that the attachment will continue only for six months.
Secondly when the order dated 15.2.1975 stated "attachment to
continue", it is understandable how the said order could have been amended
after 20 years without notice to the plaintiff-decree holder on the basis of
some private clarification letter dated 29.10.1985 allegedly written by the
District Munsif stating that the order made on 15.2.1975 was not
"attachment to continue" but "attachment to continue for six
Thirdly when said
amendment order dated 19.7.1995 amending the order dated 15.2.1975 was set
aside by the High Court by order dated 22.12.1995 with a direction for fresh
disposal in accordance with law after notice to the parties, it is understandable
how the learned District Munsiff, instead of complying with the order of the
High Court, could have issued a notice dated 18.9.1996 to both counsel stating
that the said correction adding the words "for six months" was
required to be made in the certified copies, if any obtained by the Advocates,
and that both side Advocates should produce the certified copies in EP No. 466
of 1974 for making the correction. The notice dated 18.9.1996, by no stretch of
imagination could be construed as an order after hearing as directed by the
High Court by its order dated 18 22.12.1995. The notice dated 18.9.1996 was
apparently issued under an erroneous impression that the High Court had
accepted the correction, but had directed making of the correction in the
certified copies after notice to the parties. The amendment made pursuant to
the office note dated 19.7.1995 having been set aside by order dated 22.12.1995,
and no further order having been made thereafter by the executing court, the
unauthorized addition of the words "for six months" in the order
dated 15.2.1975 have to be ignored and excluded.
the attachment dated 29.12.1974 continued till the property was sold by public
auction on 6.6.1984 and confirmed on 30.7.1985.
Consequently any sale
by the judgment debtor Mokshammal, during the subsistence of the attachment was
void insofar as the decree obtained by the appellant. Therefore it has to be
held that neither the purchasers from Mokshammal nor the respondent who is the
subsequent transferee, obtained any title in pursuance of the sales, as the
sales were void as against the claims enforceable under the attachment.
view of the above this appeal is allowed and the order of the High Court is set
aside and the order of the first appellate court confirming the dismissal of
the respondent's suit stands restored and confirmed.
(R V Raveendran)