S.N.R.Richlin Vivegha vs S.N.R.Joshva Rathinaraj
- Court
- Madras High Court
CMA(MD) No. 193 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 29.10.2026
Delivered On : 11.11.2026
CORAM
THE HON'BLE DR. JUSTICE P. MURUGAN
C.M.A.(MD) No. 193 of 2025
CNR:{HCMD011220352024}
and
C.M.P.(MD) Nos. 14032 and 3175 of 2025
1. S.N.R.Richlin Vivegha,
D/o S.N.R.Joshva Rathinaraj,
2G/570, Rajeev Nagar,
th
9 Street,
Thoothukudi,
Thoothukudi District.
2. Minor S.N.R.Julian Joshua,
S/o S.N.R.Joshva Rathinaraj,
2G/570, Rajeev Nagar,
th
9 Street,
Thoothukudi,
Thoothukudi District
nd
(The Minor 2 appellant represented through
st
his sister, the 1 appellant)
... Appellants
Vs
1. S.N.R. Joshva Rathinaraj,
S/o Narayanan,
D.No.6/11, Kamarajar Nagar,
Sawyerpuram,
Thoothukudi,
Thoothukudi District.
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2. M/s Sundaram Finance Ltd.,
Through its Manager,
21, Patullos Road,
Chennai.
3. John Alexander,
S/o Jebaraj,
32/1A, Ponnagaram,
Thoothukudi,
Thoothukudi District. … Respondents
PRAYER: Civil Miscellaneous Appeal filed under section 104 and
Order 43 Rule 1(J) of Civil Procedure Code to allow this Appeal by
setting aside the fair and decretal order passed in E.A.01 of 2021 in
E.P.19 of 2011 in Arbitration O.P.No.41 of 2008 dated 19.07.2024
on the file of the Principal District Court, Thoothukudi.
For Appellants : Mr.Ka.Raamakrishnan
For Respondents : Mr.S.Pon Senthil Kumaran
for R2
: Mr.V. Malaiyendran
for R3
J U D G M E N T
The unsuccessful appellants before the Principal District
Court, Thoothukudi, in E.A.No.01 of 2021 in E.P.No.19 of 2011 in
Arbitration O.P.No.41 of 2008, have come up with this Civil
Miscellaneous Appeal under Order 43 Rule 1(J) read with section
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104 of Civil Procedure Code, wherein, the said petition filed by the
appellants under Order 21 Rule 19(1) and section 151 of the Code of
Civil Procedure to set aside the sale of the petition schedule of the
property on 08.02.2019 on the ground of irregularity [even then
there is no schedule of property in E.A.No.1 of 2021 petition and
followed that decree drafted therein]. However, the said petition
was dismissed under the impugned order.
2. In this judgment, the rank of the parties is referred as
stood before the trial Court in E.A.No.1 of 2021 as the appellants are
petitioners and the respondents are respondents.
3. Brief facts from the affidavit of the petitioners before the
trial Court in E.A.No.1 of 2021 is as that the petitioners are third
parties in the execution proceedings in E.P.No.19 of 2011. The
second petitioner is the brother of the first petitioner. The first
respondent is their father. Their father and one Mrs. Vathsalabai
Poly Anne have availed loan from the second respondent. As per
the loan, an award was obtained by the second respondent. The
second respondent filed Execution Petition in E.P.No.19 of 2011 for
attachment of sale of the petition schedule property. The subject
property to the petition is the first item of the petitioners’ property
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(having there is no schedule in E.A.No.1 of 2021 petition, this Court
construed that the item No.1 of the E.P.No.19 of 2011 properties for
disposal of this case, wherein Item No.1 is the subject matter of the
property as argued by both the sides). As per the orders of the
Court, the sale of the first item of the Execution Petition property
was made on 08.02.2019. The third respondent is the auction
purchaser of the said property. The Item No.1 of the E.P schedule
property originally purchased by the father and mother of the
petitioners, viz., Mercy Sweetylin on 04.12.2002 by a registered sale
deed for valuable consideration of Rs.8,96,000/- (Rupees Eight
Lakhs Ninety Six Thousand only). Their mother died on 20.06.2005
in a road accident. Their mother have 50% share in the said
property. The petitioners and the first respondent are the legal heirs
of Mercy Sweetylin, therefore, each petitioners has 1/6 share and the
first respondent has 4/6 share in the first item of the petition
schedule property. The petitioners are under the care and protection
of their uncle, viz., Mr.Jeyachandra Mohan. However, without
leaving the petitioners’ share, the first item of the equal property was
auctioned and the said auction is affected with regard to the
petitioners’ right in the said property. The sale was made without
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the knowledge of the petitioners. The petitioners came to know that
the sale papers was filed and returned on 12.04.2019, but the sale
was taken place on 08.02.2019, wherein, the third respondent
purchased the property for Rs.36,02,000/- (Rupees Thirty Six Lakhs
and Two Thousand only) on 16.04.2019. The sale was confirmed
and sale certificate was issued. But sale proclamation was not made.
The E.P.No. 19 of 2011 schedule property and other one property
was also attached in E.P.No.20 of 2011 in Arbitration O.P.No.42 of
2018. Since the sale was conducted fraudulently and irregularity
committed, therefore, the petitioners filed the petition to set aside the
sale dated 18.02.2019 of the first item of the schedule property on
the ground of irregularity.
4. Before the trial Court the first respondent has not filed
any counter as per the trial Court impugned order reveals.
5. Brief counter of the second respondent is as that the
petition is not maintainable and all the allegations contained therein
are denied. The mother of the petitioners being the judgment debtor
is liable to discharge and, therefore, the petitioners claim right over
the E.P schedule property cannot be made, after the confirmation of
sale. Assuming that the petitioners have right over the property and
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challenging the sale, they ought to have deposited the sale amount to
maintain the relief. The petition has been filed in collusion with the
first respondent, who is the father of the petitioners to delay and
defeat the enjoyment of the fruits of the award. The judgment
debtors aware of the execution proceedings and not chosen to
participate since 2011, thereby, the petitioners are estopped from
filing such vexatious and frivolous petition. Therefore, the petition
is liable to be dismissed.
6. Brief counter of the third respondent before the trial
Court is as that all the allegations in the petition in support of the
affidavit are denied. He purchased the property as bonafide
purchaser and he deposited the sale proceeds in the name of the
Court and E.P. was terminated and, thereafter, the petition is not at
all maintainable. Therefore, the petition is liable to be dismissed.
7. After hearing both parties and considering the
submissions, the trial Court dismissed the said petition, which is
impugned in this appeal.
8. The grounds raised in the appeal is as that the trial Court
failed to see that before attaching the first item of the E.P schedule
property that belongs to the first respondent and his wife Mercy
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Sweetylin as joint owners. The trial Court failed to consider that
Mercy Sweetylin is not a party to any agreement with the second
respondent. The trial Court failed to appreciate that Mercy
Sweetylin died and thereby her share in the property devolves to her
legal heirs, viz., the petitioners and the first respondent, as children
and husband respectively. The trial Court failed to see that the entire
property shall not be attached and brought for auction, where Mercy
Sweetylin was not the borrower from the second respondent. The
trial Court failed to see that the petitioners have 1/3 share jointly as
legal heirs of the mother Mercy Sweetylin and the remaining 2/3
share belongs to the first respondent, thereby attaching the entire
property is not correct. The trial Court failed to see that the
properties, which was not mortgaged with the second respondent
was sold with regard to the petitioners share, and the said sale is not
valid. The trial Court failed to verify the sale deed of the first item of
the E.P schedule property and connected Encumbrance Certificate
before sale proceeding is taken place, thereby the sale amounts to
irregularity. Thereby the trial Court order is liable to be set aside.
9. Heard both sides. Perused the records. Considered the
submissions raised by both sides.
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10 . The points for consideration is as to:
(i). Whether the petitioners’ contention that they have 1/3
share jointly in the first item of the E.P schedule property is true?
(ii). Whether the attachment dated 11.08.2011of the first item
of the E.P schedule property and followed by sale dated 08.02.2019
with regard to the petitioners 1/3 share jointly is not correct?
(iii). Whether the trial Court impugned order is liable to be set
aside ?
(iv). To what order?
Point Nos. (i) and (ii):
11. Since the Point Nos.(i) and (ii) are interconnected and
interwovened to avoid repetition, this Court is of the view that the
joint discussion is necessary.
12. In this case, we are concerned only with the first item of
the EP schedule property. It is the case of the petitioners that the first
respondent is their father and their mother is Mercy Sweetylin. Their
father and mother jointly purchased the first item of the EP schedule
property on 04.12.2002 for valuable sale consideration of
Rs.8,96,000/- by a registered deed. Their mother died on 20.06.2005
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in a road accident, leaving behind the petitioners and the first
respondent as her legal heirs. These factors are not disputed by the
second respondent, which is a financial company, who extended
loan to the first respondent and one Mrs. Vathsalabai Poly Anne.
13. It is the contention of the petitioners that in first item of
properties, the petitioners have 1/3 share jointly and 2/3 share
belongs to her father first respondent. This fact is also not disputed
by the contesting respondents 2 and 3. It is the case of the second
respondent that for loan transaction, they obtained award against the
first respondent and Mrs. Vathsalabai Poly Anne in Arbitration
O.P.No.41 of 2008, by an award dated 12.11.2009. Based on the
said award, the second respondent filed execution petition in
E.P.No.19 of 2011 against the first respondent and Mrs. Vathsalabai
Poly Anne to recover their award amount.
14. In that execution petition, two schedules of properties
have been shown. The first item is an extent of 38 1/2 cents
equivalent to 16774.25 sq.ft. The value of the property shown in the
execution proceedings is Rs.3,00,000/-. The sale deed dated
04.12.2002 stood in the name of the first respondent and his wife is
available in the trial Court records, which shows that both the first
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respondent and Mrs. Mercy Sweetylin stood in their favour as joint
owners, each owner of the property has equal share. There are two
joint owners. Thereby the first respondent has 50% equal share and
his wife Mercy Sweetylin has 50% share.
15. The petitioners mother Mercy Sweetylin is not the
borrower from the second respondent company. Only the first
respondent and one lady, viz., Mrs. Vathsalabai Poly Anne are the
borrowers. When the second respondent filed execution petition to
collect the award amount, the property belongs to the first
respondent has been shown as item Nos. 1 and 2 in the E.P schedule.
From the petitioners side there is no claim over the second item of
the property. However, the claim of the petitioners is with regard to
the first item of the property stating that it stood in the joint names of
the first respondent and his wife Mercy Sweetylin.
16. Having the wife of the first respondent is not a party to
the award and the said wife of the first respondent died on
20.06.2005 leaving behind the petitioners and the first respondent as
her legal heirs, thereby, the first respondent has only a 1/3 share.
When the execution petition filed for attachment of the sale in the
year 2011, the first respondent has 1/3 share, however, the entire
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share has been shown as belonging to the first respondent, which is
not correct so and the trial Court mechanically attached the property
without verifying the title deed and encumbrance certificate, chitta,
patta etc.
17. To the first blush, the attachment order of the trial Court
dated 11.08.2011 makes irregularity and followed that the auction
sale of the first item to the third respondent and the sale confirmation
dated 08.02.2019 also irregularity is the submission of the
petitioners’ side. Though the third respondent is the bonafide
purchaser through Court auction, he should have verified the
records, but he did not do so.
18. It is the duty of the second respondent while proceeding
with the attachment and Court sale of the property of the borrower,
they have to give a clear picture. Though the document of the sale
deed stood in the name of the first respondent dated 04.12.2002 filed
before the execution Court and on perusal of the available copy of
the records, it stood not only in the name of the first respondent and
also in the name of Mercy Sweetylin. Therefore, the attachment of
entire property without leaving the share of the petitioners, i.e. 1/3
share is not only irregularity and also a patent error and followed
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that the sale confirmation dated 08.02.2019 also lacks merit and
found irregularity. Therefore, the petitioners filed the application
under the impugned order before the trial Court to set aside the sale
with regard to the first item of the E.P schedule property. The trial
Court mechanically dismissed the application without properly
considering the rights of the petitioners, thereby, it is before this
Court under the appeal.
19. The learned counsel for the petitioners submitted that the
sale was taken place on 08.02.2019 and the application in E.A.No.1
of 2021 was filed before the trial Court on 06.09.2019. The first
petitioner though major and the second petitioner was minor, on the
date of sale, ie. 08.02.2019. The first petitioner was minor, when the
attachment proceeding was taken place and she became major in due
course and immediately, after the sale was taken place on
08.02.2019, the set aside sale application was filed on 06.09.2019.
20. The learned counsel for the second respondent submitted
that any sale can be set aside , if the interested party files an
application within 60 days of the such sale as per Article 127 of the
Limitation Act, wherein section 5 of the Limitation Act, is not
applicable for the proceedings under order XXI of C.P.C.
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21. To that aspect, the learned counsel for the petitioners
submitted that it is not denied by the second respondent that the first
petitioner was minor during the attachment proceedings. Though the
first petitioner become major, after the attachment was taken place
and the second petitioner is minor, when the application under the
impugned order was filed. As per Article 60 of the Limitation Act,
whenever minors’ property is challenged before the Court of law,
three years limitation is given from the date of attaining the majority.
It is not disputed that the petitioners were minor when the
attachment was taken place and when the sale was taken place on
08.02.2019, though the first petitioner was major, but it did not lapse
three years limitation period. It is fact that the second petitioner was
minor when the application in E.A.No.1 of 2021 was filed, therefore,
Article 60 of the Limitation Act protects the limitation aspect as
canvassed by the respondents 2 and 3.
22. The learned counsel for the petitioners also referred
Article 137 of the Limitation Act and contended that though Section
5 of the Limitation Act is not applicable in the execution
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proceedings under order XXI of C.P.C, if there is no specific
provisions applicable to for the limitation that as per Article 137 of
the Limitation Act, shown the limitation is three years and thereby,
from the date of sale i.e. 08.02.2019, the impugned order application
was filed within three years. Considering the both sides submission
and also referring Articles 127, 60 and 137 of the Limitation Act,
this Court is of the view that the application was filed in time,
therefore, there is no limitation laches on the part of the petitioners.
23. During the course of the submissions, the learned
counsel for the second respondent is not disputed that the petitioners
have 1/3 share jointly in the first item of the execution petition
property, but, attachment was made and followed that sale was done
that the Court may take a possible view and at the interest of justice
to both the parties.
24. The first item of properties belongs not only to the first
respondent and also the petitioners’ mother, who was not signatory
to any agreement with the second respondent. Therefore, her share
of the property cannot be attached without hearing the said person or
her legal heirs. Therefore, the trial Court committed patent error
while attaching the deceased property, where the petitioners have 1/3
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share jointly and the first respondent has 2/3 share in his right.
Therefore, the attachment order is wrong in a patent manner.
Therefore, this Court is inclined to interfere into the impugned order
at the interest of justice. Once the attachment is not found favour as
per law, the sale confirmation dated 08.02.2019 is also not found
good, thereby, in both the aspects, the sale of the first item of the
property is not correct and thereby, this Court is to interfere.
Therefore, the impugned order is liable to be set aside and reversed.
25. The learned counsel for the second respondent placed a
decision of this Court in a co-ordinate Bench in the case of Perumal
& Anr. v. Pappathi , C.R.P.(MD)No.47 of 2023 by an order dated
14.07.2023 to the aspect nobody should be allowed to suffer for the
fault of the Court. To the great respect, the facts of this case is differ
from the facts of that case, thereby the said report is not applicable to
the facts of the present case, wherein, the minors property attached
and followed that sale was taken place.
26. Another decision of the Hon’ble Supreme Court in
Aarifaben Yunusbhai Patel & Ors. v. Mukul Thakorebhai Amin &
Ors. , in Civil Appeal Nos.1643-1644 of 2020, dated 17.03.2020, to
the aspect of limitation to file application is 60 days as per Article
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127 of the Limitation Act and section 5 of the Limitation Act is not
applicable to the execution proceedings. Therefore, the delay on the
part of the petitioners in filing the petition to set aside the sale is not
justified. As discussed above, since the petitioners were minors
during the attachment and after the first petitioner attained majority
within 3 years as per Article 60 coupled with Article 137 of the
Limitation Act, the application was filed to set aside the sale and at
that time, the second petitioner was minor and represented by the
first petitioner, thereby with great respect, the said citation is not
applicable to the facts of the present case.
27. In such view of the matter, the Point Nos.(i) and (ii) are
answered in favour of the petitioners holding that the petitioners are
entitled to 1/3 share jointly in the first item of the EP schedule
property, thereby, by attaching the petitioners property, who are not
the borrowers from the finance company and followed by sale of 1/3
share belonging to the petitioners are not correct so. Thereby, the
impugned order found patent illegality.
Point No.(iii):
28. Since Point Nos. (i) and (ii) are answered in favour of
the petitioners, certainly the impugned order is liable to be set aside
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in toto with regard to the first item of the property and thereby the
appeal is allowed.
Point No.(iv):
29. Since the attachment of property dated 11.08.2011 and
followed that sale confirmation dated 08.02.2019 with regard to the
first item of the E.P schedule property is found is not correct and the
impugned order is set aside to that extent, the trial Court is directed
to restore the E.P once again on file and the second respondent is
directed to go for amendment, amending the prayer in the execution
petition coupled with the schedule of property for attachment and
sale only for 2/3 share of the first respondent excluding 1/3 share of
the petitioners as undivided share. After such amendment is done,
the trial Court is directed to proceed further for attachment etc. with
regard 2/3 shares in the first item of the E.P schedule property.
Thereby, the sale confirmation dated 08.02.2019 in favour of the
third respondent in E.P.No.19 of 2011 passed by the Principal
District Court, Thoothukudi, is also set aside , with a direction to the
trial Court to proceed further as directed above. Considering the
nature of relief, there shall be no order as to costs.
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30. In the result:
(i) This Civil Miscellaneous Appeal is allowed;
(ii) The impugned order dated 19.07.2024 passed in E.A.No.1
of 2021 in E.P.No.19 of 2011 in Arbitration O.P.No.41 of 2008 is set
aside and the E.A.No.1 of 2021 is allowed;
(iii) The Principal District Court, Thoothukudi, is directed to
restore the E.P.No.19 of 2011 on file and the second respondent is
directed to amend the execution petition prayer and schedule therein
for attachment and sale of first item of property with regard to 2/3
share of the first respondent excluding 1/3 share of the petitioners as
undivided share and after such amendment, the trial Court may
proceed to attach and followed the sale etc, by following due process
of law; and
(iv) There shall be no order as to costs. Consequently,
connected Miscellaneous Petitions are closed.
12.11.2026
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
LS
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To
The Principal District Judge,
Thoothukudi,
Thoothukudi District.
Copy To :
The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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CMA(MD) No. 193 of 2025
DR. P. MURUGAN, J.
LS
C.M.A.(MD)No.193 of 2025
12.11.2026
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