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Judgment
G. Rajasuria, J.—This second appeal is focussed by the original plaintiffs, animadverting upon the judgement and decree dated 19.08.2008 passed in A.S. No. 127 of 2007 by the Principal Sub Court, Erode, confirming the judgement and decree of the trial Court, namely, First Additional District Munsif Court, Erode, in O.S. No. 390 of 2005. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.
Pithily and precisely, tersely and briefly, avoiding discursive delineation of facts in view of the case of both sides having been set out in detail in the judgments of both the Courts below, I would like to set out the germane facts thus:
The second appellants/plaintiffs filed the suit O.S. No. 390 of 2005 seeking the following reliefs:
To pass a decree and judgment against the defendants:
(1) By declaring the order of conditional attachment - made by the 1st defendant herein in CEP No. 92/2003-2004 dated 02.07.2004 is null and void against the schedule mentioned properties of the suit properties herein.
(2) By restraining the defendants, their men and agents and any other officials of the defendant herein from bring the schedule mentioned properties for sale by means of the consequential permanent injunction....
The defendants entered appearance and filed the written statement and resisted the suit.
The trial Court framed the relevant issues. During trial, the first plaintiff examined himself as P.W.1 and Exs.A1 to A10 were marked. On the side of the defendants, one Shankaran was examined as D.W.1 and Exs.D1 to D13 were marked.
Ultimately, the trial Court dismissed the suit, as against which appeal was filed, for nothing but to be dismissed by the appellate Court, confirming the judgment and decree of the lower Court. Being disconcerted and aggrieved by the judgments of both the Courts below, this Second Appeal is sought to be filed on various grounds and also by suggesting the following substantial questions of law:
(a) Whether the courts below committed an error in law in holding that the suit is barred u/s 156 of the Tamil Nadu Cooperative Societies Act especially when the authorities under the Act have no jurisdiction to decide the question of title particularly when the plaintiffs are not parties to the loan document?
(b) Whether the Courts below are erred in law and misdirected themselves in dismissing the suit filed against the order of attachment dated 02.07.2004 (Ex.A.2) relating to the loan borrowed by the mother of the appellants particularly when the judgment debtor had no interest or right over the property sought to be attached in view of the release deed dated 30.09.2002 (Ex.A.3) in the name of the appellants?
(c) Whether the Courts below have properly appreciated and applied the principles of law to find out the validity of the order of attachment before judgment dated 02.07.2004 in view of the fact that the 1st respondent had not adjudicated the claim under the Rules 135 and 137 of the Tamil Nadu Cooperative Societies Rules 1988?
Heard the learned Counsel for the appellants.
A bare poring over and perusal of the typed set of papers including the copies of the judgments of both the Courts below and also considering the arguments of the learned Counsel for the appellants, it is evident that the plaintiffs happened to be the sons of one Karuppannan who was an employee under R2. It appears some surcharge proceedings were initiated as against him. In the process of such surcharge proceedings, the suit property was attached by the authority vide proceedings dated 02.07.2004, which is in the form of prohibitory order. The plaintiffs approached the Court by filing the suit, challenging and impugning the said proceedings on the ground that even as early as in the year 2002, the said Karuppannan executed the release deed in favour of his two sons, the plaintiffs herein and as such, the authority was not justified in issuing such an order. Both the Courts below adverting to Rule 135 of the Tamil Nadu Co-operative Societies Rules, 1988 and Section 156 of the Tamil Nadu Co-operative Societies Act, 1983 held that the suit was not maintainable.
The learned Counsel for the plaintiffs advanced his argument to the effect that the plaintiffs are not servants of R2 and their father Karuppannan even though happened to be the servant under R2, long before passing of the impugned order dated 02.07.2004 by the Deputy Registrar, released whatever right he had in the suit property and thereby, as on the date of the impugned order, Karuppannan was not at all concerned with that property and in such a case, the plaintiffs being third parties to the proceedings initiated by the Deputy Registrar had the right to file the suit.
At this juncture, my mind is redolent and reminiscent of the earlier judgment of this Court reported in 2008(4) L.W.251 [M.M.V. Alagappan and Anr. v. Karaikudi Co-operative House Building Society Ltd. represented by its Special Officer, Karaikudi and Anr.]. Of course, the said judgment is on a different set of facts, but it is based on the following maxims:
"Expressio unius, exclusio alterius, Expressum facit cessare tacitum, Generalia specialibus non derogant", "quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud."
and the ratiocination adhered to in holding that Civil Court is having no jurisdiction in respect of matters like this would be squarely applicable to the facts and circumstances of this case also.
The relevant portion of Rule 135 is extracted hereunder for ready reference:
Investigation of claims and objections to attachment of property: (1) Where any claim is preferred to, or any objection is made to, the attachment of any property attached under these rules on the ground that such property is not liable to such attachment, the sale officer shall investigate the claim or objection and dispose of it on merits:
Provided that no such investigation shall be made when the sale officer considers that the claim or objection is frivolous.
(2) Where the property to which the claim or objection relates has been advertised for sale, the sale officer may postpone the sale pending the investigation of the claim or objection.
(3) Where a claim or an objection is preferred, the party, against whom an order is made by the sale officer, may institute a suit within six months from the date of the order to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order made by the sale officer shall be conclusive.
(4)(a)....
The said Rule presupposes that even a third party who might have been aggrieved by the order of the authority under the Tamil Nadu Co-operative Societies Act and Rules should necessarily approach the authority concerned under the Act and get an order and thereafter alone, he could challenge it in the Civil Court. Hence in such a case, there is no force in the contention of the plaintiffs that they being third parties are having the right to file a suit straight away.
The learned Counsel for the plaintiffs would make an extempore and impromptu representation to the effect that as revealed by the records, even as early as on 01.03.2005 objection was filed before the Officer concerned, but the same was not considered.
At this juncture, what I would like to observe is that if the said representation was not sufficient in the view of the authority under the said Act, it is open for him to supplement it in the proper form as prescribed by the Rules and also, by paying necessary fee, if any, and press for it, whereupon, the authority concerned shall deal with it and pass appropriate orders. I would also like to direct that within a period of one month from the date of receipt of a copy of this order, the plaintiffs shall approach the authority with necessary application, whereupon without insisting on limitation point, the authority shall entertain the application and pass orders on merits, untrammelled and uninfluenced by any of the observations made by this Court in disposing of this Second Appeal. Accordingly this Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.