1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.10.2011 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN W.P.(MD)NO.7541 of 2011 and M.P.(MD)Nos.1 to 5 of 2011 T.Karnan ...Petitioner Versus 1. The Deputy Registrar of Co-operative Societies, Madurai Circle, No.42, Krishna Rayer Theppakkulam Street, Madurai-Ramanathapuram District Central Co-operative Bank Building, Madurai – 625 001. 2. The Sub-Registrar, Thirupparankundram, Madurai District. 3. The Liquidator of the Madurai Urban Co-operative Bank Limited, Madurai. ...Respondents [R-3 Suo motu impleaded as party respondent as per the order of the Hon'ble Court dated 20.10.2011.] PRAYER : Writ petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order passed by the first respondent in his proceedings in C.E.P.No.159/2009-10/S.C.No.10/2006-07/SF Dated 05.01.2011 and the consequential proceedings in Ne.Ma.No.158, 159, 160/09- 10 dated 14.06.2011 and quash the same as illegal and consequentially to direct the second respondent to cancel the entry of attachment made in the encumbrance certificate in respect of properties situated in Survey Nos.349/12, 349/2A, 349/5, 349/8B, 353/5, 353/7 and 353/9, Vilacheri Village, Madurai South Taluk, Madurai. For Petitioner : Mr.M.E.Ilango For RR 1 & 2 : Mr.K.P.Krishnadoss Government Advocate For R – 3 : Mr.T.Lajapathi Roy O R D E R The petitioner has come up with the above Writ Petition challenging a notice of attachment, dated 05.01.2011 and an order of attachment, dated 14.06.2011 passed by the first respondent herein. 2. Heard Mr.M.E.Ilango, learned Counsel for the petitioner, Mr.K.P.Krishnadoss, learned Counsel for the respondents 1 & 2 and Mr.T.Lajapathi Roy, learned Counsel appearing for the Liquidator of the https://hcservices.ecourts.gov.in/hcservices/ 2 Madurai Urban Co-operative Bank Limited, who was impleaded as the third respondent Suo motu by this Court on 20.10.2011. 3. The petitioner purchased the properties which are now sought to be attached by the first respondent, by a sale deed, dated 21.02.2006 from one Mr.R.Vishwanathan. The said Mr.R.Vishwanathan was the son of one Mr.V.S.Ramasubramaniam, who was the President of the Madurai Urban Co- operative Bank Limited. The vendor of the petitioner got the property in question by way of a gift settlement deed, dated 18.11.2003 executed by his father, who was the Ex-President of the Co-operative Bank. 4. At the time when the petitioner filed the sale deed dated 21.02.2006 for Registration, the Sub-Registrar refused to register it and release it on the basis of a letter dated 31.01.2004 sent by the Deputy Registrar of Co-operative Societies. Therefore, the petitioner came up with a Writ Petition in W.P.No.7728 of 2007. The Writ Petition was allowed by an order dated 09.06.2009 and the Sub-Registrar was directed to release the document. However, insofar as the claim of the Co-operative Bank was concerned, the petitioner was given liberty to work out his remedies under Rule 135 of the Tamil Nadu Co-operative Societies Rules, 1988. 5. In accordance with the liberty so granted, the petitioner filed an application under Rule 135. On the said application, the first respondent passed an order, dated 16.05.2011 holding that there was in fact no attachment. 6. However in the mean time the first respondent also issued a notice of attachment dated 05.01.2011 followed by an order of attachment dated 14.06.2011. Aggrieved by the notice and the order, the petitioner is before this Court. 7. The challenge of the petitioner to the impugned notice and order of attachment, are two fold, namely, (1) that at the time when he purchased the property from the son of the Ex-President, there was no order of attachment and hence the property at the hands of a third party, cannot be attached and (2) that an order of attachment under Rule 126 can be passed only as against a judgment debtor, but since there is no judgment debtor, there can be no order of attachment. 8. I have carefully considered both the above objections of the petitioner. It is true that there was actually no order of attachment, on the date on which the sale deed was presented for Registration by the petitioner. But there was a communication from the Deputy Registrar. Whether the said communication would have the effect of an order of attachment, is something which should be considered only at a later stage, in view of larger public interest. 9. Insofar as the second objection is concerned, the impugned order has no doubt been issued under Rule 126. But the question as to whether an attachment can be passed only after a judgment or even before a judgment, is also a question which involves larger issues. 10. It is not only that the questions raised herein involve larger issues of law, but also involve issues of fact which cannot be gone into a Writ Petition. In the previous Writ Petition where the petitioner partly https://hcservices.ecourts.gov.in/hcservices/ 3 succeeded, he was only directed to take re-course to Rule 126 of the Rules. After taking re-course to Rule 126, the petitioner actually succeeded. Therefore, the remedy to which he had recourse, actually proved fruitful for the petitioner. In such circumstances, there is no reason or justification for the petitioner to by-pass the very same remedy against the impugned orders also. 11. As I have pointed out earlier, when questions of fact are involved, it is but proper that they are settled before the jurisdiction of this Court in invoked. Therefore, I am of the view that in tune with the order passed in the earlier Writ Petition the petitioner should be directed only to invoke Rule 135. Even assuming that the petitioner does not succeed, he has other remedies available under the Act. 12. In view of the above, this Writ Petition is disposed of giving liberty to the petitioner to invoke Rule 135 of the Tamil Nadu Co- operative Societies Rules, 1988. Within two weeks of the petitioner filing any application under Rule 135, the first respondent shall decide all the issues of fact and law in accordance with law and pass appropriate orders. Consequently, connected miscellaneous petitions are closed. No costs. SD/- Assistant Registrar (CO) /True copy/ Sub Assistant Registrar(C.S) To 1. The Deputy Registrar of Co-operative Societies, Madurai Circle, No.42, Krishna Rayer Theppakkulam Street, Madurai-Ramanathapuram District Central Co-operative Bank Building, Madurai – 625 001. 2. The Sub-Registrar, Thirupparankundram, Madurai District. 3. The Liquidator of the Madurai Urban Co-operative Bank Limited, Madurai. +1. CC to the Special Government Pleader, SR.No. 36893 +1. CC to Mr.T.Lajapathi Roy, Advocate, SR.No. 36890 ps W.P.(MD)NO.7541 of 2011 21.10.2011 TR :29.10.2011: 3p/6c https://hcservices.ecourts.gov.in/hcservices/