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K.V. Mohanasundaram Vs. Tamil Nadu Civil Supplies Corporation Ltd. by Its Regional Manager and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1984)2MLJ373
AppellantK.V. Mohanasundaram
RespondentTamil Nadu Civil Supplies Corporation Ltd. by Its Regional Manager and anr.
Cases ReferredIn M.Y. Khanaji v. Syndicate Bank
Excerpt:
- - in effect the prayer and the facts set out clearly make out that that application was filed claiming the release of these two lorries......facts in the supporting affidavit establish that it is one under order 38, rule 9 civil procedure code. mohana sundaram also filed i.a. no. 177 of 1982 in the main suit for raising the attachment regarding the above said two lorries. in effect the prayer and the facts set out clearly make out that that application was filed claiming the release of these two lorries. in this application, mohana sundaram has correctly given the provision of law as one under order 21, rule 58 civil procedure code.2. the lorry adt. 9146 was sold under exhibit a. 1 to mohana sundaram on 17.12. 1981 by the first defendant in the suit (o.s. no. 46 of 1982). the first defendant in the suit on 5-1-1982 sold the lorry tnl. 8019 to mohana sundaram, under exhibit a-2. on 22-1-1982, he filed a joint application for.....
Judgment:
ORDER

P.R. Gokulakrishnan, J.

1. The Civil Revision Petition C.R.P. No. 1888 of 1982 arises out of I.A. No. 176 of 1982 on the file of the Court of the Subordinate Judge, Salem. C.M.A. No. 256 of 1982 arises out of I.A. No. 177 of 1982 on the file of the Court of the Subordinate Judge, Salem. In a common judgment, the learned Subordinate Judge, Salem dismissed both the interlocutary applications. Hence, the claim petitioner by name K.V. Mohana Sundaram has preferred the civil revision petition and the civil miscellaneous appeal as stated above, and he will be hereinafter referred to as Mohana Sundaram. The short facts of these cases are that the Civil Supplies Corporation filed the suit O.S. No. 46 of 1982 on the file of the Subordinate Court, Salem against the second respondent herein for recovery of Rs. 5,82,138.35 in respect of the supply of paddy given for hulling. The suit was filed on 5-2-1982. In that suit I.A. No. 149 of 1982 was filed on the very same date for attachment of four lorries. So far as the present revision petition and the appeal are concerned, we are dealing with only two lorries, ADT. 9146 and TNL. 8019. Both these lorries are claimed by Mohana Sundaram stating that he has purchased these two lorries from the second respondent herein. On 5-2-1982 itself the attachment was ordered including these lorries. Mohana Sundaram filed I.A. No. 176 of 1982 praying for the release of the lorries, namely ADT. 9146 and TNL. 8019 on the ground that he has purchased them from the second respondent herein. Even though the provision of law stated in the petition was Section 151 Civil Procedure Code, the prayer in the petition and the facts in the supporting affidavit establish that it is one under Order 38, Rule 9 Civil Procedure Code. Mohana Sundaram also filed I.A. No. 177 of 1982 in the main suit for raising the attachment regarding the above said two lorries. In effect the prayer and the facts set out clearly make out that that application was filed claiming the release of these two lorries. In this application, Mohana Sundaram has correctly given the provision of law as one under Order 21, Rule 58 Civil Procedure Code.

2. The lorry ADT. 9146 was sold under Exhibit A. 1 to Mohana Sundaram on 17.12. 1981 by the first defendant in the suit (O.S. No. 46 of 1982). The first defendant in the suit on 5-1-1982 sold the lorry TNL. 8019 to Mohana Sundaram, under Exhibit A-2. On 22-1-1982, he filed a joint application for transfer of the permits of these two lorries and the Regional Transport Authority, Salem, ordered the transfer of permits to be effected by his order dated 27-1-1982 and they are evidenced by the documents, Exhibits A-3 and A-4. It is only on 20-2-1982 the orders in I.A. Nos. 176 & 177 of 1982 were obtained, which are subsequent to the order of the Regional Transport Authority, Salem transferring the permits alone. The Court below while disposing of both these applications has observed that there is no necessity for an endorsement on the registration certificate for actual transfer of these lorries and did not dispute the documents produced for such transfers. Nevertheless, the Court below, after observing that Mohana Sundaram has not made out that he became the owner of these vehicles prior to the order of attachment and that the first defendant in the suit had ceased to be the owner of these vehicles, dismissed both the applications.

3. Mr. G. Ethirajulu, learned Counsel for Mohana Sundaram, submitted that there is absolutely, no discussion as contemplated under Order 21, Rule 58 Civil Procedure Code to dispose of the claim made by Mohana Sundaram in respect of the lorries ADT. 9146 and TNL. 8019. According to the learned Counsel the non-registration of the name of the purchaser in R.C. Book will not in any way vitiate the transfer, since the sale of a motor vehicle is not under the Motor Vehicles Act, but it is under the Sale of Goods Act. To substantiate these contentions, the learned Counsel referred to the decision in Southern Settlemet &. Alloys v. B.M. Steel : AIR1978Mad270 , wherein a Bench of this Court held as follows-

The adjudication referred to under Order 21, Rule 58 Civil Procedure Code (as amended in 1976) is not summary and as it is the intention of legislature under the amended Civil. Procedure Code that it should be a decision as if rendered in a regular suit resulting in an appealable decree the fuller examination of the rights of parties has to be held after giving them adequate opportunity to place all relevant materials before the Court so that the Court could ultimately decide and adjudicate on all questions including questions relating to title or interest in the property attached.

In M.Y. Khanaji v. Syndicate Bank, A kola (1979)1 KL.J. 333 : 1979 A.C.J. 386 : A.I.R. 1979 Ker. 182, a single Judge of Karnataka High Court held as follows:

It is not correct to say that the only way to transfer the ownership of a motor vehicle is by getting the name of the purchaser registered in the Registration Certificate and in the books of the Regional Transport Officer. The fact of non-registration does not vitiate the sale. The sale of motor vehicles is not under the Motor Vehicles Act but it is under the Sale of Goods Act.

Order 21, Rule 58 of the Code of Civil Procedure as amended is as follows:

58(1) Where any claim is preferred to, 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 herein contained:

Provided that no such claim or objection shall be entertained.

(1) Where, before the claim is preferred or objection is made, the property attached has already been sold, or

(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.

(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.

(3) Upon the determination of the questions referred to in Sub-rule (2), the Court shall, in accordance with such determination-

(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or

(b) disallow, the claim or objection; or

(c) continue the attachment subject to any mortgage, charge or other interest in favour of any person, or

(d) pass such order as in the circumstances of the case it deems fit.

(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

(5) Where a claim or an objection is preferred and the Court, under the proviso to Sub-rule (i), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute but, subject to the result of such suit if any, an order so refusing to entertain the claim or objection shall be conclusive.

4. The order of the Court below has not followed the mandatory provisions contained in Order 21, Rule 58 Civil Procedure Code, before it disposed of the claim petition filed by Mohana Sundaram. The reasoning of the Court below in coming to the conclusion that these interlocutory applications have to be dismissed, in my view, does not satisfy the requirement under Order 21, Rule 58 Civil Procedure Code. Necessarily, the matter has to be remanded for fresh disposal to the Court below to dispose of the matter bearing in mind the mandatory provision contained in Order 21, Rule 58 Civil Procedure Code.

5. Mr. Mani, learned Counsel appearing for the first respondent herein submits that both the lorries were released on condition that Mohana Sundaram furnishes Bank guarantee for a sum of Rs. 1,00,000/-and which guarantee furnished by Mohana Sundaram is still subsisting. The learned Counsel suggests that the said guarantee should be kept alive till the disposal of the applications after the same are remanded. For this course, Mr. Ethirajulu, learned Counsel for Mohana Sundaram, has no objection.

6. The Civil Revision petition and the appeal are allowed and I.A. Nos. 176 & 177 of 1982 are remanded to the trial Court. The trial Court will dispose of the above interlocutory applications afresh in the light of the above observations bearing in mind the mandatory provisions contained in Order 21, Rule 58 Civil Procedure Code and after giving opportunities to both parties to adduce evidence both oral and documentary. It is made clear that the Bank guarantee given by Mohana Sundaram will be kept alive till the disposal of the applications I.A. Nos. 176 & 177 of 1982 on its file. It is further made clear that this order will not affect the rights of respondents 4 and 5(M/s. Guruvayur Finance and Sarada Finance) who are the hire- purchase owners of these two lorries. There will be no order as to costs in the revision as also in the appeal.


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