(Prayer: This Appeal Suit is filed under Section 96 of the Civil Procedure Code to set aside the fair and decreetal order, dated 07.01.2026 passed in EA.No.1 of 2024 in E.P.No.61 of 2020 in ACP.No.4 of 2017 on the file of the II Additional District Judge, Thoothukudi.)

1. This Appeal Suit is filed to set aside the fair and decretal order dated 07.01.2026 passed in E.A.No.1 of 2024 in E.P.No.61 of 2020 in ACP.No.4 of 2017 on the file of the learned II Additional District Judge, Thoothukudi.

2.The brief facts of the case:

The appellant is the petitioner/3rd party in E.A.No.1 of 2024 in E.P.No.61 of 2020 in ACP.No.4 of 2017 on the file of the learned II Additional District Judge, Thoothukudi. The 1st respondent/decree holder in A.C.P.No.4 of 2017 obtained an Arbitral Award, dated 12.03.2018, against the respondents 2 & 3/judgment debtors, directing them to pay Rs.2,75,88,000/- along with interest at 2.5% p.m. Since the respondents 2 & 3/judgment debtors have not paid the decree amount, the 1st respondent/decree holder has filed E.P.No.61 of 2020 before the II Additional District Court, Thoothukudi, for realizing the decree amount by attachment and sale of the petition mentioned immovable property. On 28.03.2024, the II Additional District Court, Thoothukudi, has passed an order directing the respondents 2 & 3/judgment debtors to pay the decree amount within one month, failing which the petition mentioned immovable property would be attached. As the respondents 2 & 3/judgment debtors failed to comply with the order, dated 28.03.2024, the petition mentioned immovable property was ordered to be attached on 29.04.2024 and accordingly, the said property was attached on 21.11.2024.

3.The appellant/petitioner has filed petition under Order 21 Rule 58 of CPC in E.A.No.1 of 2024 in E.P.No.61 of 2020 in ACP.No.4 of 2017 to raise the order of attachment, dated 28.03.2024 passed in E.P.No.61 of 2020 in ACP.No.4 of 2017 on the ground that prior to order of attachment, the petitioner has purchased the petition mentioned property from one Shanmugavel on 13.01.2020, that the said Shanmugavel purchased the property from the 3rd respondent on 05.07.2018 and so, he is title holder of the property. The 1st respondent/decree holder strongly resisted the said petition. The respondents 2 &3/judgment debtors have not participated in the proceedings. On the petitioner's side, the petitioner was examined as P.W.1 and Ex.P1 to Ex.P.4 were marked. On the respondents' side, no witness was examined, and no exhibit was marked.

4.After hearing both sides, the II Additional District Court, Thoothukudi, has held that the sale transaction in favour of the petitioner is not a bona fide one and thereby dismissed the said petition by its order, dated 07.01.2026. Aggrieved by the order of the II Additional District Court, Thoothukudi, the appellant/petitioner has moved this Court by way of this Appeal Suit.

5.Both side have elaborately argued at length by quoting citations.

6.Arguments of the Appellant/petitioner:

The learned counsel for the appellant/petitioner has argued that the petitioner is a businessman in Hyderabad. He wanted to purchase an immovable property in his native place. Since one Shanmugavel offered to sell the petition mentioned property with a larger extent measuring 9.40 acres, the petitioner has purchased the same for valid consideration. The said Shanmugavel purchased the property in the year 2018 from the 3rd respondent and his father. The order of attachment is against 8 acres, which belonged to the 3rd respondent by way of a gift deed, dated 26.07.2017, executed by his mother. The impugned attachment was passed after the purchase by the petitioner. The said Shanmugavel had not been issued any notice of award, nor was the petitioner issued any notice. The 1st respondent obtained an exparte award against the respondents 2 and 3 for money of Rs.2,75,88,000/-. As the respondents did not pay the same, the 1st respondent filed an execution petition, in which the order of attachment was passed in 2024. On the date of filing of the execution petition, the 3rd respondent had no right over the petition mentioned property. Prior to that, the property had already been sold two times. Hence, the order of attachment is unenforceable. Therefore, the petitioner filed the petition for raising the attachment, but the executing Court dismissed the same by misconstruing the facts and circumstances of the case.

                    6.1.The executing Court has passed the impugned order on three grounds, viz., (i) The Amin valued the property at Rs.9 crores and 42 lakhs and that the petitioner has stated in evidence as Rs.2 crores, but as per the document, the petitioner purchased the property only for Rs.13.5 lakhs.

                    (ii) The 3rd respondent sold the petition mentioned property to Shanmugavel within four months from the date of the award and hence, the said sale is fraudulent.

                    (iii) The petitioner did not produce the original sale deed, but he filed only a certified copy and so, the execution of the sale creates suspicion.

                    6.2. The attachment order was passed under Order 21 Rule 54 of CPC. As per provisions under Rule 54, “where the property is immovable, the attachment shall be 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.” As per the above provision, the attachment would only prevent the judgment debtor from alienating the property. It is the duty of the 1st respondent to file a petition seeking attachment after verification of encumbrance over the petitioner's property and the Court will also see whether the property is still available for attachment in the hands of the judgment debtor. If the property is alienated, the decree holder has to implead the subsequent purchasers and seek that the transfer is affected U/s.53 of the Transfer of Property Act. The subsequent purchasers have to be impleaded as parties to the petition for attachment. The Court has to give an opportunity to the subsequent purchaser to establish whether the transfer is affected by Section 53 of the Transfer of Property Act. But, the 1st respondent/decree holder deliberately suppressed the factum of alienation. Hence, the order of attachment is unenforceable.

                    6.3.The learned counsel further submitted that before passing an order of attachment, the Court has to decide whether the sales in the year 2018 and 2020 are fraudulent and affected by Sec.53 of the TP Act. The petitioner purchased the petition mentioned property in 2020 from one Shanmugavel. So, without deciding the validity of the sale purchased by Shanmugavel in 2018 in the absence of impleading him as a party, the purchase by the petitioner could not be held as fraudulent. The petition under Order 21 Rule 58 or Rule 97 of CPC has to be decided as a suit. Hence, the initial burden is on the part of the 1st respondent/decree holder to prove that the sale transactions in favour of Shanmugavel and then the petitioner is a fraudulent one. Unfortunately, the 1st respondent/decree holder has not proved the initial burden. The learned counsel has relied on the decision of this Court in the case of N.C.T.Chidambaram Pillai /v/ S.V.Subramania Ayyar and Ors. reported in AIR 1932 MAD 513, in which it is held as follows:

                    “On the first question as to burden of proof it is undoubtedly the case that until the decision of the Privy Council reported in Official Receiver .v. P.L.K. M.R.M. Chettiyar Firm, (2) following the case in Official Assignee of the Estate of Cheah Soo Tuan .v. Khoo Sae Cheon (3) the prevailing view of the Indian Courts was that it lay upon the transferees to establish that they were bona fide transferees for value. This view has now been authoritatively set aside and the correct view is that it is upon the receiver (petitioner) who wants to avoid the transfers under S.53 to establish that the transfers are invalid for want of consideration and bona fides. Although neither of the decisions in this case in the Courts below refers to the burden of proof, it is quite plain from the proceedings that they adopted what was at that time believed to be the correct view.....”.

And in the case of M.Govinda Gounder /v/Pichandi Pillai & Anoher reported in 2003-2 Law Weekly 79, wherein it is held in paragraph No.8 as follows:

                    “It is not disputed as could be seen from the records that the claimant has purchased the property on 19.09.1985 whereas the attachment was only subsequent to that namely, on 10.10.1985. Therefore, the burden to prove that the purchase was to defraud the creditor is very much on the plaintiff..... Curiously the plaintiff has not got into the box; nor has he produced any other evidence to support his claim that the sale is vitiated by fraud. Ultimately, the burden to prove the allegation of fraud is very heavy on the person pleading fraud and in the present case the plaintiff has not made any attempt to adduce any evidence. I am inclined to hold that on that basis alone the defence of the plaintiff ought to have been rejected by the Courts below.”

                    6.4.The learned counsel would further argue that the 1st respondent/decree holder has failed to plead and prove that the respondents 2 & 3/judgement debtors have sold all their properties, left with no property, in order to defeat the creditor. The respondents 2 & 3/judgment debtors are of Tuticorin. The said Shanmugavel, vendor of appellant/petitioner, is a resident of Shankar Nagar, Tirunelveli. The appellant/petitioner is residing and doing business in Hyderabad. All three belong to different communities and they are not connected with each other either by way of blood relations or friendship. To prove the sale transaction is fraudulent, the 1st respondent/decree holder must prove that the respondents 2 & 3/judgment debtors and the purchaser belong to the same village and that no sale consideration was paid before the Sub Registrar at the time of execution of the sale deed. These are absent in the present case. The learned counsel has relied on the decision of this Court rendered in the case of Kaliyaperumal Nadar /v/ Santhanam Chettiar and Anr. reported in 1995 (II) CTC 313, wherein it is held in paragraph No.20 as follows:

                    “20. .....As one of the essential ingredients for invalidating a transfer under S.53 of the Transfer of Property Act is a fraudulent intention to defeat or delay creditors, the intention has to be found. A man is presumed to intend the natural and normal consequence of his acts. The intention with reference to a particular act must be judged only from the consequences of the Act in the background of the surrounding circumstances. If the effect of a sale is necessarily to leave in the hands of the transferor, a large amount of cash, which could have been avoided by sale of lesser extent, an inference of fraudulent intent may follow......

                    If the transferor has other properties available for meeting the demands of his creditors, an inference to defeat the creditors by sale of a single item is rebutted.

                    (emphasis supplied)”

                    6.5.The learned counsel for the appellant/petitioner has further contended that the 2nd respondent, in its counter filed in Execution Petition, has clearly stated that the Arbitral award was not sent to him. Even if the award is valid, there is no pleading or evidence available to show that the judgment debtor was informed about the award. In any event, the vendor of the petitioner, namely Shanmugavel and the petitioner were not aware of the award before purchase. The petitioner has purchased the property for valuable sale consideration. As per legal dictum, lesser consideration could not be a criterion to cancel the sale. The learned executing court has relied on Amin’s return for the value of the property. But, there is no oral evidence of said Amin, nor is Amin’s return marked in this case. Moreover, Amin is not an expert to prove any fact regarding the value of the property and even if the report of the Amin is available and the Amin is examined, it is the duty of the court to call for report from property valuer and relied on decision of this Court in the case of S.Suresh Kumar /v/ K.Nagesh by its order, dated 23.06.2026 passed in C.R.P(MD)Nos.1320 of 2020 batch cases. It is held in its paragraph No.16 as follows:

                    “16. Although the petitioner has negligent in not paying the decree amount even though the petitioner has earlier secured an interim order from this Court in A.S.No.75 of 2017 vide order dated 31.03.2021, the property of the petitioner cannot be under valued and sold based on arbitrary upset price either that is fixed by the Amin or the enhance value by the learned Judge. The Hon’ble Supreme Court in Hindustan Derodo Limited Vs Collector of Central Excise reported in (1997) 2 SCC 677 has held that even if the technical member of a Tribunal cannot brush aside opinion of an expert. The technical knowledge of member of a Tirbunal is for better appreciation of record and not to substitute the opinion of the expert. Ideally, after the property was visited and examined by the Amin, the Court should have called for a report from a property valuer with the help of an Advocate Commissioner and thereafter fixed upset price so that there was no scope for any undervaluation.”

                    6.6.The executing Court has relied on evidence of P.W.1 that the property is worth about two crores, but he paid Rs.13.5 lakhs. The 3rd respondent’s mother executed a gift deed dated 26.07.2017, mentioning the value as Rs.11 lakhs, the mother purchased the said property on 09.12.2002 for a value of Rs.4 lakhs. The vendor of the petitioner purchased for Rs.13 lakhs and sold at Rs.13.50 lakhs. The value mentioned in the petitioner’s sale deed is only the guideline value for the purpose of stamp duty. The sale consideration is between the parties. The guideline value is not a foundation to determine the market value by relying on the decision of this court in the case of M/s.Sakthi & Co., /v/ Shree Desigachary reported in (2006) 2 MLJ 295, in which it is held as follows:

                    ''18.Therefore, our conclusions are as follows:

                    (1) The guideline value, contained in the Basic Valuation Register, maintained by the Revenue Department or the Municipality for the purpose of collecting stamp duty, has no statutory base or force. It cannot form a foundation to determine the market value mentioned thereunder in instrument brought for registration.

                    (2) Evidence of bona fide sales between willing prudent vendor and prudent vendee of the lands acquired or situated near about that land possessing same or similar advantageous features would furnish basis to determine the market value. In this case, the guideline value alone has been considered, which, in our view, is illegal.

                    (3) The Rent Controller and the Rent Control Appellate Authority, in the present case, are not right in relying upon the guideline value, maintained by the Revenue Department, for arriving at a fair rent, to be fixed under Section 4 of the Tamil Nadu Buildings (Lease & Rent Control) Act,1960.”

AIR 1989 Mad 78 in the case of D.Pattammal v. K.Kalyanasundaram it is held in paragraph No.14 as follows:

                    “14. There is no definition of the term ‘market value’ in the Court-Fees Act, nor is there any definition in the General Clauses Act. Hence, the term ‘market value’ has to be understood in its plain meaning as in common parlance, i.e., the value which the property will fetch in the market….. The uniform view of the Courts is that ‘market value of the property’ is the value which a willing purchaser will pay to a willing seller having regard to the location and advantages attached to the property and also the potential value thereof.....”.

1996 2 LW 658 in the case of K.Ramanathan (died) and Others v. B.K.Nalini Jayanthi wherein it is held in paragraph No.30 as follows:

                    “30.To determine the fair rent under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, evidence in each case is absolutely necessary. It will not be possible for any Court to have an idea about the relevant factors, viz., location of the site, proximity, nearness to the developed areas, frontage, situation, etc., in any case, merely on the basis of sale deeds pertaining to some lands in the locality. Even the particulars contained in a given case arc sufficient to prove the nature and character of the lands, dealt with therein, there must be evidence before the Court to the effect that the lands are similar in nature and the character of the lands dealt with in such sale deeds, and those documents could be taken into consideration for fixing the fair rent for any residential or non-residential building. If a party rests content with producing some sale deeds and if there is no material before Court, the sale deeds cannot be taken into account by the Court for determining the market value. Therefore, as held by the Supreme Court in 1993 (3) SCC 240 and 1991 (4) SCC 195 referred to supra, persons connected with the sale transactions or the attesting witnesses should be examined in order to prove the transactions as well as the factors referred to therein. The burden of proof is always on the landlord to prove in each case the market value of the site in which the building is constructed, the cost of construction of the building and the cost of provision of anyone or more of the amenities specified in Schedule I as on the date of application for fixation of fair rent. Under Section 64 of the Evidence Act, documents must be proved by primary evidence except in cases mentioned in Section 65 of the Evidence Act.”

                    6.7.By relying on the above said decisions, the learned counsel insisted that a stray sentence of evidence of P.W.1 cannot be picked in isolation. The same is to be read along with the entire oral and documentary evidence, so the value Rs.13,50,000/- shown in the sale deed reflects the real market value. It is not undervalued as decided by the executing Court. Moreover, the inadequate or less sale consideration could not be a ground to say that the sale transaction is a fraudulent one. Even the 1st respondent/decree holder has not raised such pleading in his execution petition. More so, paying lesser stamp duty by undervaluing the property is meant for collecting proper stamp duty and this will not be a ground to set aside the sale deed. For these arguments, the learned counsel relied on the following rulings of the Hon’ble Supreme Court in the case of L.K.Prabhu @ L.Krishna Prabhu (Died) v. K.T.Mathew @ Thampan Thomas and Ors. reported in 2026 (1) CTC 113, in which it is held in paragraph No.15 as follows:

                    “15. The onus to establish that the transfer was made with an intent to defeat or delay creditors lies squarely upon the party alleging fraud. Mere suspicion, inadequacy of consideration or the existence of a relationship between the parties, cannot, by themselves, constitute proof of such intent. Moreover, while the conclusion for fraud must rest on established facts and legitimate inferences drawn therefrom, every device or artifice need not be fully unravelled to sustain a finding of fraud. In the present case, Respondent No.1(creditor) has failed to produce cogent evidence showing that the dominant purpose of the impugned transfer was to defeat his right. The circumstances relied upon, such as community ties, financial difficulties of Defendant No.2, and partial cash consideration, may give rise to suspicion, but suspicion cannot substitute legal proof. The property was transferred for stated consideration under a duly registered deed and possession duly followed. There is no evidence to prove that the transfer rendered the transferor insolvent or that the creditor suffered any actual and irretrievable prejudice.” And

(2022) 5 MLJ 753 in the case of Senthil vs. Rajamani and Anr. this Court held in paragraph No.12 as follows:

                    “12.When a property is sought to be attached before judgment, the Court is bound to verify the status of the property as to in whose name the said property stands, by calling for records from the revenue department, if need be. Even otherwise, the minimum duty of the Court is to verify the status of the property from the encumbrance certificate, issued by the revenue department. In the absence of any verification thereof, the Court is not supposed to make attachment of the property before judgment, which, if made, would lead to fraudulent acts.”

                    6.8. The learned counsel lastly contended that the initiation of arbitration proceedings was with regard to giving false bank guarantee by respondents 2 & 3/judgment debtor. If so, the judgment debtors would well know that the 1st respondent/decree holder would take legal action, in such circumstances, the 3rd respondent would not get property from his mother on 26.07.2017 as a gift before filing arbitral proceedings. Moreover, the 1st respondent/decree holder has not sought attachment before judgment against the property during the arbitral proceedings. Even the property in question is not the subject matter of arbitral proceedings. So, the purchase of property by Shanmugavel cannot be said to be a fraudulent one. Further, the arbitral award is passed against the 2nd respondent firm alone and there is no personal award passed against the 3rd respondent. Hence, the sale transaction made by the 3rd respondent in favour of Shanmugavel, in turn, transferred to this petitioner, cannot be attached. Therefore, the appellant/petitioner is the absolute title holder of the petition mentioned immovable property and so, the attachment order passed by the executing Court is liable to be set aside and prays to allow this appeal.

7. Arguments made by the 1 st respondent/decree holder side:

Per contra, the learned counsel for the 1st respondent/decree holder vehemently made arguments that the arbitral award was passed on 12.03.2018 against the respondents 2 & 3/judgment debtor. Within four months from the date of the award, the 3rd respondent has made the alleged sale transaction, dated 05.07.2018, in respect of the petition mentioned property in favour of one Shanmugavel, who, in turn, sold the same to the appellant/petitioner. The sale transacted by the 3rd respondent was a deliberate, collusive and sham in order to evade his liability under the award, preventing the 1st respondent from getting the fruits of the decree. So the alleged sale is not a bona fide one. The conduct of the 3rd respondent clearly reflects the intention to circumvent the execution proceedings.

                    7.1. The learned counsel for the 1st respondent/decree holder has further submitted that the petition mentioned property worth crores of rupees as per Amin Return and also according to the evidence of the petitioner as P.W.1. But, the sale consideration was mentioned only as Rs.13,00,000/-, which is very much undervalued compared to the market value. The said Shanmugavel purchased the property for Rs.13,00,000/- on 05.07.2018 and sold the same to the petitioner for Rs.13,50,000/- on 13.01.2020. Hence, these sale transactions clearly demonstrate that the sales were effected with mala fide intentions with the sole objective of alienating only to frustrate the enforcement of the arbitral decree. Moreover, the petitioner has not produced the original sale deed and the petitioner has not made any undertaking to produce the same whenever required. The proximity between the date of the award and the execution of the alleged sale deed raises serious doubt as to the genuineness of the transaction. So, the learned District Court has rightly held that the attached property was alienated only with the intention to frustrate the execution of the award by the 1st respondent/decree holder.

                    7.2.The learned counsel further submitted that during the pendency of execution proceedings in E.P.No.61 of 2020, on 17.08.2021, the respondents 2 and 3 submitted that they would settle the matter, but failed to make a settlement. Further, the respondents 2 and 3 have not preferred any appeal against the arbitral award, so the award attained finality. Hence, with the intention to defeat the award amount, the 3rd respondent purposely sold his property. Though the sale predates the order of attachment, the circumstances, timing and intent behind the transaction have to be taken into consideration. The appellant/petitioner has also admitted in his evidence that he was aware of the execution proceedings. Despite the knowledge, he has not chosen to file any petition before the passing of the attachment order, but only after execution petition was allowed and the attachment order was passed, the petitioner has filed the present petition to raise the attachment. So, these acts show a lack of bona fide. A person who claims absolute right over the property, is expected to assert such right at the earliest point of time. The Courts have held in various cases that the objections filed after passing of the attachment order are to be viewed with suspicion, where the objector had prior knowledge of the case proceedings. It is also to be taken into consideration that the petitioner has not paid the requisite stamp duty in respect of the registration of property, which was deliberately undervalued for the sale consideration. The petitioner has not examined any of the attesting witnesses to the sale deed to substantiate his claim over the suit property, and also to prove the sale consideration. Hence, it shows a lack of bona fide. The contention of the petitioner that he and his predecessor were not given any notice or that they were not impleaded as a party is not acceptable. Because respondents 2 and 3/judgment debtors have to take necessary steps, but they have not actively participated in the arbitral proceedings despite the receipt of notice. Moreover, while offering a sale transaction, it is for the purchaser to verify any legal proceedings against the seller when a property fetching a value of crores of rupees was sold at a lesser price. Therefore, there is no bona fide on the part of the petitioner. The District Court has properly appreciated the facts and circumstances and correctly dismissed the petition filed by the petitioner. Hence, there is no need for interference with the impugned order and thus, the appeal is liable to be dismissed.

8.The point arising in this appeal is whether the executing Court has dismissed the petition in E.A.No.1 of 2024 in E.P.No.61 of 2020 in ACP.No.4 of 2017 without appreciating the facts of the case?

9.For the sake of convenience, the parties arrayed in E.A.No.1 of 2024 in E.P.No.61 of 2020 on the file of the II Additional District Judge, Thoothukudi are adopted hereunder.

10.Point:

On hearing both sides and on perusal of records, it is clear that there was a contract, dated 15.06.2017, incorporating terms and conditions between the 1st respondent/decree holder and the respondents 2 & 3/judgment debtors for advancing an amount towards the business of respondents 2 &3/judgment debtors. The respondents 2 &3/judgment debtors have furnished two bank guarantees for a sum of Rs.5.00 crores each, dated 10.07.2017, drawn on Tamil Nadu Mercantile Bank Limited, Sipcot Branch, Thoothukudi. The respondents 2 &3/judgment debtors were liable to pay two invoice amounts of Rs.1,25,40,000/- each, a total amount of Rs.2,50,80,000/- to the 1st respondent/decree holder on or before 24.07.2017. Later, the 1st respondent/ decree holder came to know that the bank guarantee furnished by the respondents 2 &3/judgment debtors was a forged and fabricated one and so, on approach, the respondents 2 &3/judgment debtors issued a post-dated cheque for Rs.1,25,40,000/- bearing cheque No.409516, dated 05.08.2017. The 1st respondent/decree holder presented the cheque for honour, but it was returned as ‘insufficient funds’. Hence, the 1st respondent/decree holder issued a legal notice, dated 31.08.2017 and then filed a case under Section 138 of N.I.Act in C.C.No.8259 of 2017 before the Judicial Magistrate Court, Saidapet. As per the contract, dated 15.06.2017, the 1st respondent/decree holder has also issued an arbitration notice, dated 08.09.2017 and filed a claim petition No.4 of 2017 before the sole arbitrator. After issuance of notice by the sole arbitrator, the respondents 2 &3/judgment debtors did not participate in the arbitral proceedings and the award in the arbitration case No.4 of 2017 came to be passed on 12.03.2018.

11.On perusal of records, the respondents 2 &3/judgment debtors have not preferred any appeal challenging the award. Since the respondents 2 &3/judgment debtors have not paid the award amount, the 1st respondent/decree holder has initiated execution proceedings in E.P.No. 130 of 2019 in ACP.No.4 of 2017 before the Principal District Court, Tuticorin, for realizing the award amount. The said E.P.No.130 of 2019 was made over to the II Additional District Court, Tuticorin and renumbered as E.P.No.61 of 2020 in ACP.No.4 of 2017. The respondents 2 &3/judgment debtors have appeared in the execution proceedings and filed a counter. After hearing both sides, the learned II Additional District Judge, Tuticorin, has passed an order on 28.03.2024, directing the respondents 2 &3/judgment debtors to pay the award/decree amount to the 1st respondent/decree holder within one month, failing which the petition mentioned property would be attached. As respondents 2 &3/judgment debtors have not paid the decree amount complying with the order, dated 28.03.2024, the petition mentioned property was ordered to be attached on 29.04.2024 and accordingly, the property was attached on 21.11.2024. The appellant/petitioner/third party has filed a petition under Order 21 Rule 58 of CPC, to raise the order of attachment on the ground that he is the title holder of the petition mentioned property. That petition was dismissed by the executing court by its order, dated 07.01.2026, which is now under challenge.

12.The appellant/petitioner has mainly contended that the petition has to be conducted as a suit, that the petitioner adduced oral and documentary evidence, but the respondents 2 &3/judgment debtors have not adduced any evidence to substantiate their claim that the sale stood in the name of petitioner is fraud, that the executing Court has not properly considered the facts and that the executing Court dismissed the petition on three reasons (i) that the first sale transacted by the respondents 2 &3/judgment debtors in favour of Shanmugavel within four months from the date of award, (ii) that the value mentioned in sale deed is under valued and (iii) that parent title deed was not produced.

13.On perusal of records, there is no dispute that the award/decree was passed on 12.03.2018 against the respondents 2 &3/judgment debtors. The 3rd respondent/judgment debtor sold his property to one Shanmugavel on 05.07.2018. The petitioner purchased the same on 13.01.2020. The contention of the petitioner is that when there is allegation regarding bank guarantee furnished by respondents 2 &3/judgment debtors being a forged one, the 3rd respondent would not get the petition mentioned property from his mother as gift on 26.07.2017 knowing fully well the 1st respondent would take legal action in respect of alleged bank guarantee and so, the sale transaction executed by the 3rd respondent cannot be considered as cheating to defeat the right of decree holder. This contention is not accepted. Because, on perusal of records, the respondents 2 &3/judgment debtors were due to pay Rs.2,50,80,000/- as on 24.07.2017, and during the month of August 2017, the bank guarantee furnished by respondents 2 &3/judgment debtors came to be found as forged one, the respondents 2 &3/judgment debtors issued two cheques, dated 05.08.2017, which were returned as 08.08.2017 as insufficient funds. So, there is no legal liability as of 26.07.2017, while the 3rd respondent obtained a gift.

14.The next contention is that the executing court held that the executing court has to try the petition as like a suit and has to give opportunities to both parties for adducing evidence and that the petitioner has adduced oral and documentary evidence, whereas the 1st respondent/decree holder has not adduced any evidence. Of course, there is no contrary opinion that the claim petition has to be tried as an original suit. The petitioner has filed claim petition under Order 21 Rule 58 of CPC, if so, the petitioner is deemed to be in the position of plaintiff and therefore, it is for the petitioner to lead evidence to substantiate the genuineness and validity of his sale deed and the burden is on the plaintiff to show that he has a title superior to the right of the 1st respondent/decree holder. Under Order 21 Rule 58 of the CPC, the initial burden of proof always rests on the third-party claimant or subsequent purchaser to prove that they possess a valid, bona fide right, title, or interest in the attached property. Once this burden is discharged, the burden shifts to the decree-holder to prove that the sale was fraudulent or collusive.

15.In this case, the 1st respondent/decree holder has alleged that the respondents 2 and 3/judgment debtors have created a sale deed after the arbitral award/decree to defeat his right to enjoy the benefit of the decree. So, the initial burden lies on the petitioner to prove that the post-decree sale is a genuine one. On perusal of records, the petitioner has examined himself as P.W.1 and only marked the certified copy of gift and sale deeds and encumbrance certificate as Ex.P.1 to Ex.P.4. The petitioner has not examined any one of the attesting witnesses or scribe of the deed, much less the vendor of the petitioner, namely, Shanmugavel to substantiate that the sale is a genuine one. It is pertinent to note here that the respondents 2 and 3 have not filed any counter supporting the claim of the petitioner and they were not subjected to examination by getting into the witness box. As per evidence, the suit property is fetching crores of rupees, whereas the petition mentioned property was sold only for Rs.13,00,000/- and Rs.13,50,000/- as per Ex.P.2 and Ex.P3. A perusal of the evidence of the petitioner as P.W.1, who categorically admitted as

                   

16.On perusal of Ex.A2 and Ex.A.3 - sale deeds, there is no content mentioned therein why the property was sold to Rs.13 lakhs and odd. When the petitioner/claimant put forth an argument that the court has to verify the actual market value, the petitioner has to take steps to appoint an advocate/commissioner to ascertain the market value or to call for revenue officer’s report to show the actual market value. Moreover, the petitioner has not marked any of the sale deeds which were taken place in respect of adjacent lands during the relevant period. Once again, on repetition, the petitioner has not examined any attesting witness or scribe of the sale deed to show the reason why the sale consideration was at Rs.13 lakhs and odd. It is to be borne in mind that the petitioner has not paid the required stamp duty despite the direction and also he has not produced the original sale deed relating to Ex.P.2 and Ex.P.3. So, as rightly argued by the 1st respondent/decree holder, that the sale is not genuine is an acceptable one.

17.The petitioner is a businessman, as per his version. The respondents 2 and 3/judgment debtors are also doing business. If so, the petitioner has to verify the encumbrance in respect of any litigation against the respondent 2 and 3/judgment debtor before proceeding to purchase, while he claims that he is doing business at Hyderabad and intends to purchase land in his native place. He cannot shift the burden on the 1st respondent. Because, admittedly, on the date of the award/decree, the property was well within the possession of the respondents 2 and 3/judgment debtor, who knew very well about the initiation of legal proceedings under Section 138 of the NI Act and also about the arbitral proceedings prior to the subsequent sale under Ex.P.2, dated 05.07.2018. Therefore, the intention of the respondents 2 & 3/judgment debtors would show their act to defeat the right of the 1st respondent/decree holder. Hence, the executing Court has rightly held that the subsequent sale after the decree is fraudulent and was made only to defeat the right of the decree holder.

18.Next, the petitioner contends that no notice of arbitration was issued to him and the said Shanmugavel and also contends that while filing the execution petition, the respondents 2 & 3/judgment debtors were not aware of the arbitral award. This contention is not an acceptable one. Because the respondents 2 & 3/judgments have not strongly argued that they were not given notice of arbitration proceedings. They remained exparte in arbitration proceedings on receipt of the arbitral notice. It is argued by the counsel for the 1st respondent/decree holder that during pendency of execution proceedings in E.P.No.61 of 2020, on 17.08.2021 the respondents 2 and 3/judgment debtors submitted before the executing Court that they would settle the matter and so it was adjourned to 06.09.2021, but the respondents 2 and 3/judgment debtors have not settled the issue and they have not preferred appeal against the arbitral award. This was not specifically denied by the petitioner. The respondents 2 and 3/judgment debtors filed a counter in E.P.No.61 of 2020, in which they have not contended this version. They also remained exparte in E.A.No.1 of 2024 in E.P.No.61 of 2020. So, the arbitral award attained finality as rightly argued by the 1st respondent. Hence, it is for the respondents 2 & 3/judgment debtors to bring notice to their purchasers about the arbitral proceedings as well as execution proceedings. Vice versa, it is the duty of the subsequent purchasers to verify the same. So, the argument that the petitioner and his vendor, Shanmugavel, were not given notice of award has no substance.

19.Recently, the Hon’ble Supreme Court has clearly held in the case of R.SAVITHRI NAIDU /v/ M/S. THE COTTON CORPORATION OF INDIA LIMITED AND ANOTHER reported in 2026 INSC 150 that a transferee who purchased property from a judgment debtor after an arbitral award has been passed cannot resist the execution proceedings and the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 applies equally to money decree in execution proceedings.

20.The verdict of the Hon’ble Supreme Court in Savithri Nadu /v/ The Cotton Corporation of India Limited (2026 INSC 150) is as follows:

                    “10.In the facts and circumstances of the present case, the arbitral proceeding was instituted in 1999, and the award is dated 11.06.2001. Under Section 36 of the Arbitration and Conciliation Act, 1996, an arbitral award is enforceable in the same manner as if it were a decree of a court, essentially, a deemed decree. Order XXI Rule 102 of the CPC explicitly states that the protections available to bona fide claimants under Rules 98 and 100 do not apply to a transferee pendente lite. A transferee pendente lite is defined as someone to whom the property is transferred after the institution of the suit in which the decree was passed. The suit, i.e., the arbitration proceeding, was instituted in 1999, and the Appellant purchased the property on account of a sale deed dated 23.04.2015. Since the transfer occurred after the institution of the proceedings and the passing of the award, the Appellant is a transferee pendente lite/post arbitral award purchaser, and is barred by Order XXI Rule 102 from resisting the execution. The Appellant, per contra, argues that the Section 34 challenge was dismissed in 2013, and the sale was in 2015, implying no litigation was pending. However, the argument under Order XXI Rule 102 does not depend on the pendency of the Section 34 challenge, but on the fact that the transfer occurred after the institution of the suit in 1999, and after the arbitral award (decree) came into existence in 2001. A judgment debtor cannot defeat a decree by alienating the property after the decree is passed but before the decree is realised. In other words, the steps taken defeat the very fruits of the money decree. The ratio of this Court in Usha Sinha v. Dina Ram, 2 is kept in perspective while appreciating the claim which falls under Rule 102 of Order XXI of the CPC. The excerpt is noted here:

                    “Bare reading of the Rule makes it clear that it is based on justice, equity and good conscience. A transferee from a judgment-debtor is presumed to be aware of the proceedings before a court of law. He should be careful before he purchases the property which is the subject-matter of litigation. It recognises the doctrine of lis pendens recognised by Section 52 of the Transfer of Property Act, 1882. Rule 102 of Order 21 of the Code thus takes into account the ground reality and refuses to extend helping hand to purchasers of property in respect of which litigation is pending. If unfair, inequitable or undeserved protection is afforded to a transferee pendente lite, a decree-holder will never be able to realise the fruits of his decree. Every time the decree-holder seeks a direction from a court to execute the decree, the judgment-debtor or his transferee will transfer the property and the new transferee will offer resistance or cause obstruction. To avoid such a situation, the Rule has been enacted.”

                    11.We have taken note of the rival submissions. At first glance, it appeared to us that to realise the amount due under an arbitral award, a third party’s property is attached. We have to arrive at an available finding examining the record and the foremost circumstances we preface are from 1999 till 2013, when the arbitration proceedings are pending against Respondent No.2. From 2014 till date, the proceedings in execution are pending against Respondent No. 2. The EP has been filed before the Court of Principal District Judge, Coimbatore, and was transferred to Tirupur. The transferee court, within whose jurisdiction the properties are situated ordered attachment for realisation of the arbitral award dated 11.06.2001. The Appellant presents the case as a third-party stranger. We may not hasten to conclude that there is fraud between the Appellant and Respondent No. 2 in the transfer of the EP Schedule Properties by sale deed dated 23.04.2015. But the non-production of tripartite agreement, which is the genesis for discharging the claim of ICICI Bank, as has been rightly held by the Executing Court, enables this Court to safely conclude that the sale in favour of Appellant, even if for consideration cannot be without notice of the existing liability of the Company/Respondent No.2. The recovery proceedings under SARFAESI Act are independent and does not give any shield of protection to other claims against the Judgment Debtor/Borrower in default. In the circumstances of the case, we reject the argument that the sale in favour of the Appellant is without notice.

                    12. The next question for consideration is whether the sale in favour of the Appellant can be brought within the purview of pendente lite, given that the arbitral award is for the recovery of money. The question need not be treated as res integra; the valid reasoning of the Madras High Court, affirmed by this court in Danesh (supra), is a complete answer. The operative portions of the judgment:

                    “63. To substantiate our reasoning, we may also look into the decision of the High Court of Madras in Annakkili v. Murugan & Anr., reported in 2021 SCC OnLine Mad 1673, wherein the plaintiff had filed a suit for the recovery of money, and also sought for a direction to be given to the judgment-debtor to furnish security for the suit claim, failing which the court must direct that the properties mentioned in the plaint, be attached. Before any direction could be passed, the appellant therein purchased one of the properties mentioned in the plaint. It was then argued that Section 52 of the 1882 Act cannot be invoked in case of a simple money suit. The Court held that Section 52 does not state that it is not applicable to suits for recovery of money, and the provision would not say so, because the Explanation to the provision states that the pendency of any suit continues until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained. It was further held that the parties must not create new rights in the property till the execution proceedings are discharged. The Court underscored that if Section 52 was read as always excluding money suits, despite a specific prayer in the plaint as regards the attachment of the property, a decree passed therein would be rendered meaningless, since the party would be free to alienate the property and there would be no property available to execute the money decree.”

                    13.It is a well-worn proverb in litigation, echoing the Privy Council’s century-old observation, that the true difficulties of a litigant begin only after they have obtained a decree. It is generally stated that a suit may take 5 years to conclude, but its execution takes 10 years. Order XXI of the CPC was comprehensively amended in 1976 specifically to cure this mischief, operating as a self-contained code that strictly bars separate suits (under Section 47, Rule 92(3), and Rule 101) and imposes rigid limitation periods for raising objections. If the argument of the appellant is accepted allowing pendente lite purchasers or third parties to bypass these strict procedural safeguards and institute separate suits or raise belated objections long after the execution processes (like attachment and sale) have advanced, it would completely derail the statutory machinery. Judgment-debtors would be incentivized to systematically defeat decrees by transferring properties or planting surrogate objectors to initiate endless collateral litigation. Consequently, execution proceedings would not merely take 10 years, but would get trapped in an infinite loop and practically never get completed, reducing the hard-won decrees of competent courts to mere “paper tigers.”

                    13.1 This Court emphasized in Jini Dhanrajgir v. Shibu Mathew, that winning a case is meaningless unless the winner actually gets the relief they sought. We need a shift in mindset: the goal of the legal system should not just be to dispose of cases, but to ensure that the litigant enjoys the reliefs. The provisions in the CPC must be employed to secure actual relief, not just a formal decree. We must ensure that the legal process results in justice not just appearing to be done, but justice actually being done.

                    14.To sum up, we note that the Appellant is a purchaser post-arbitral award for recovery of the amount. The execution proceeding was pending when the sale deed was entered into between Respondent No.2 and the Appellant. Moreover, the Appellant failed to discharge the onus on the sale being without notice of the existing claim. The arbitral award remains unrealised till date. Therefore, in the circumstances of this case, and by following the ratio in Danesh (supra) we hold that the claim petition of the Appellant is rightly dismissed by the courts below.

                    15.In the circumstances of the case and for the above reasons, we agree with the order impugned, and the Civil Appeal fails and is dismissed. The executing court disposes of Execution Proceedings within two months from today.''

21.In this case, on perusal of records, it is very clear that there is an arbitral award against the respondents 2 and 3/judgment debtor, which was passed on 12.03.2018. The 3rd respondent/judgment debtor sold his property to Shanmugavel on 05.07.2018 by virtue of Ex.P.2 and the said Shanmugavel sold the same to the petitioner on 13.01.2020 under Ex.P.3. The arbitral award is unrealized till date. So, following the above verdict of the Hon’ble Supreme Court, the appellant/petitioner has no right to obstruct the execution proceedings. The contention of the appellant/petitioner that the arbitral award was passed only against the 2nd respondent and there is no award against the 3rd respondent is meaningless. The 2nd respondent is a firm represented by its Proprietor, the 3rd respondent, who is solely liable to pay the award amount. Considering the above facts and circumstances, the case of the appellant/petitioner has no merit, and the rulings relied on his side are not applicable to the facts and circumstances of the case.

22.From the above facts and circumstances, this Court holds that the executing Court has properly appreciated the facts and evidence of the case and correctly dismissed the petition filed by the appellant/petitioner. Therefore, the impugned order does not warrant interference by this Court and this Appeal Suit fails.

23.In the result, this Appeal Suit is dismissed. The fair and decretal order, dated 07.01.2026 passed in E.A.No.1 of 2024 in E.P.No.61 of 2020 in ACP.No.4 of 2017 on the file of the learned II Additional District Judge, Thoothukudi is confirmed. No costs. Consequently, the connected Civil Miscellaneous Petition is closed.