IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 110 of 2007()
1. M. SUDHAKARAN, S/O.URAPPARAN,
... Petitioner
Vs
1. MANGATT PRABHAKARAN, S/O.CHOYI,
... Respondent
2. T.C. PADMANABHAN, S/O.GOPALANKUTTY NAIR,
For Petitioner :SRI.PHILIP ANTONY CHACKO
For Respondent :SRI.T.SETHUMADHAVAN
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :09/12/2009
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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R.F.A.No. 110 of 2007
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Dated this the 9th day of November, 2009
JUDGMENT
Joseph Francis, J.
This appeal is filed by the petitioner in I.A. No.525 of
2004 in I.A.No. 525 of 2002 in O.S.No. 49 of 2002 on the
file of the Sub Court, Quilandy. Respondents 1 to 3 herein
are respondents 1 to 3 in that petition, which was filed under
Order 38 Rule 8 and Order 21 Rule 58 C.P.C.
2. The case of the appellant/petitioner in brief is as
follows. The petition schedule property, along with other
items, originally belonged to one Gopalankutty Nair and
others, who partitioned the property as per final decree in
O.S.No. 341 of 1968 of the Munsiff Court-II, Kozhikode.
The above said Gopalankutty Nair took delivery as per
E.P.No.163 of 1971 and was in exclusive possession of the
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property. On his death, the rights devolved on his legal heirs.
The second respondent is his son, who had 1/6 share in the
property.
3. The appellant purchased his share as per assignment
deed No.743/02 dt. 23.3.2002. Subsequently, the appellant came
to know that the property has been attached in I.A.No. 525 of 2004
on the allegation that the third respondent had mortgaged 41.5
cents of property in favour of the first respondent for a loan of
Rs.4 Lakhs on 12.2.2001 and that the defendants executed a
promissory note in favour of the first respondent/plaintiff. The
appellant apprehends that the respondents have colluded together
for defrauding him after the second respondent sold the property in
his favour for valuable consideration. The promissory note is
created for the purpose of defeating his rights. The appellant is a
bonafide purchaser for consideration and he was not aware of any
transaction involving the second respondent/first defendant prior
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to the purchase till he came to know of the attachment from the
Sub Court, Kozhikode.
4. The petition schedule property was attached in another
case filed as O.S.No. 218 of 2002 before the Sub Court,
Kozhikode. The appellant was not aware of the attachment and
he knew about the attachment only when it was effected in the
above proceedings. The allegation that the property described in
the schedule to plaint is insufficient for discharging the plaint
claim is incorrect. Even assuming that the value of the property is
not sufficient, the petitioner and his properties are not liable as he
is a bonafide purchaser for value. So, the petitioner prayed for an
order removing the attachment over the petition schedule property
with costs of the proceedings.
5. The first respondent, who is the plaintiff in the suit, filed
counter statement denying the averments in the petition. He
submitted that the petitioner had purchased right over the first
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defendant/2nd respondent as per registered document No. 743/ 02.
The 2nd respondent had borrowed a sum of Rs.4 lakhs from the
first respondent on 20.2.2004. The said aspect has been admitted
by the defendants in the suit. But in order to defeat the rights of
the respondent, the 2nd respondent colluding with the petitioner,
created a document and got registered. The said document is a
sham one, as per which no consideration was passed. It has not
been acted upon. The possession of the property has never been
handed over to the claimant. Before and after the said assignment
deed, it is the 2nd respondent who is in possession of the property
and he and his family are residing in the house situated therein.
6. The claim petitioner has filed the claim petition before
the Sub Court, Kozhikode in O.S. 218/02. It was on 7.1.2003 the
suit in question was decreed and the averment in the petition that it
was only on 19.10.2003, the petitioner came to know of the
attachment is incorrect. The petition is liable to dismissed because
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of the above said delay. It is only for protracting the proceedings
before the court, the 2nd respondent colluding with the claimant
has filed the claim petition.
7. In the Sub Court, for the purpose of enquiry PWs. 1 to 3
and RW1 were examined and Exts.A1 to A13 and B1 were
marked. The learned Sub Judge, on considering the matter,
dismissed that petition on finding that the claimant failed to
establish his right over the petition schedule property. Against
that order the petitioner filed this appeal.
8. Heard the learned counsel for the appellant and the
learned counsel for the first respondent.
9. 1/6th share of the first defendant in O.S.No. 49 of 2002
on the file of the Sub Court, Quilandy over the petition schedule
property was attached as per order in I.A.No. 525 of 2002
dt.9.8.2002. Ext.A1 is the copy of the Sale Deed No.743/02
dt.23.3.2002 executed by the first defendant in favour of the claim
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petitioner in respect of the 1/6th right of the first defendant over
that property. Therefore, it is clear that on the date of Ext.A1 Sale
Deed there was no attachment of the petition schedule property as
per order in I.A.No. 525 of 2002 in O.S.No. 49 of 2002.
10. O.S.No. 49 of 2002 was filed by the plaintiff for
realisation of Rs.4 lakhs from defendants 1 and 2 on the basis of a
promissory note executed by defendants 1 and 2 and the property
having an extent of 41.5 cents belonging to the second defendant
was mortgaged to the plaintiff. According to the claim petitioner,
he purchased 1/6th share of the first defendant over the petition
schedule property as per Ext.A1 sale deed dt. 23.3.2002 as a
bonafide purchaser. PW1 deposed that he purchased 1/6th share
of the first defendant over the petition schedule property for a sale
consideration of Rs.40,000/-
11. The learned counsel for the appellant invited our attention
to the decision of the Apex Court reported in Hamda Ammal v.
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Avadiappa Pathar and ors. ((1991) 1 SCC 715), in which it was
held:
Rule 5 of Order 38 CPC would not apply where
the sale deed has already been executed by the
defendant in favour of a third person. A transaction of
sale having already taken place even prior to the
institution of a suit cannot be said to have been made
with the intention to obstruct or delay the execution of
any decree. Rule 10 of Order 38 also makes it clear that
attachment before judgment shall not affect the rights,
existing prior to the attachment, of persons not parties
to the suit. It would, however, a different case
altogether if a creditor wants to assail a pre-attachment
transfer by sale under Section 53 of the Transfer of
Property Act, 1882. Such suit would be decided on
totally different considerations in accordance with the
provisions of Section 53 of the Act.
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Neither in Section 64 CPC nor in the form
prescribed for attachment there is any prohibition for
submitting the sale deed for registration which has
already been executed prior to an attachment. In view
of Section 54 of the Transfer of Property Act after the
execution of the sale deed with consideration all the
ingredients of sale are fulfilled except that in case of
tangible immovable property of the value of Rs. 100
and upwards it can be made only by registered
instrument. Section 47 of the Registration Act makes it
clear that after the registration it will relate back to the
date of execution of the sale deed. The act of
registration is to be performed by the registering
authority. Thus the vendee gets rights which will be
related back on registration from the date of the
execution of the sale deed and such rights are protected
under Order 38 Rule 10 CPC read together with
Section 47 of the Registration Act.
When the property belonged to the defendant-
judgment debtors (vendors) and the sale deed had
already been executed by them prior to the attachment
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before judgment and only its registration remains, then
neither the attachment before judgment nor a
subsequent attachment or court sale of the property
would confer any title by preventing the relation back.
The fact that the document of sale had not been
registered until after the attachment makes no
difference. Even an unregistered document can be
received as evidence for purposes mentioned in the
proviso to Section 49 of the Registration Act. The
contention that till registration, the execution of the sale
deed does not confer any rights whatsoever on the
vendee cannot be accepted.”
12. In the decision reported in Ithakku Abraham v.
Kesavan Damodaran (1987 (1) KLT 704), it was held:
“A plea based on S.53 of the T.P. Act can be
raised by way of defence, and if raised as a defence,
there is no need to defend the suit in a representative
capacity on behalf of all the creditors of the judgment
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debtor. Rs.58 as amended by the C.P.C. Amendment
Act 104/1976 expressly provided that all question
( including questions relating to right, title and interest
in the property attached) arising between the parties to a
proceeding or their representatives under the 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. An order made
under sub-rule (3) shall have the same force and be
subject to the same conditions as to appeal or otherwise
as it were a decree. Since the claim is to be adjudicated
on all questions relating to right, title and interest in the
property attached, the claimant is in the position of a
plaintiff and the decree-holder who opposes the claim is
in the position of a defendant in a suit where the
question relating to the right, title or interest in the
property attached is to be determined. The decree
holder is therefore entitled to defend the claim on
grounds available to him under S.53 of the T.P. Act and
such a defence need not be in a representative capacity,
on behalf of all the creditors of the judgment debtor.”
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13. On perusing the lower court records in I.A. 525 of 2002
in O.S. No. 49 of 2002 on the file of the Sub Court, Quilandy it is
seen that the first defendant is having an extent of 7.63 cents in
Re-survey No.8/2 in Nileswaram Village apart from the petition
schedule property. When this fact was brought to the notice of the
counsel for both sides, the counsel for the first respondent
submitted that, that property was sold by the first defendant after
attachment in O.S.No. 49 of 2002 on the file of the Sub Court,
Quilandy and thereafter that property has undergone several
assignments and as such that property is not available for sale in
execution of the decree.
14. Under Section 53 of the Transfer of Property Act the
burden is on the plaintiff, who alleged fraud to prove the same and
mere suspicion is not sufficient to come to the conclusion that
Ext.A1 sale deed is a fraudulent one in order to defeat the claim of
the plaintiff.
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15. On going through the order under challenge it is seen
that the lower court relied on Ext.B1 copy of the order in I.A.No.
2083 of 2002 in O.S.No. 218 of 2002 on the file of the III
Additional Sub Court, Kozhikode along with other evidence to
arrive at a conclusion that Ext.A1 is a sham transaction. But we
have set aside Ext.B1 order as per judgment in R.F.A. 333 of 2003
and remanded the matter to the lower court for fresh consideration.
The learned counsel for the appellant submitted that the appellant
came to know about the attachment in the present case when he
got Ext.B1 certified copy of the order and that the appellant filed
the claim petition without much delay.
16. On considering the evidence on record, we are of the
view that the evidence is not sufficient to arrive at a conclusion
that Ext.A1 is a bonafide sale or it is a fraudulent one. Therefore,
we are of the view that in the interests of justice both sides should
be given sufficient opportunity to adduce further evidence to
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substantiate their respective contentions and for that purpose the
case has to be remanded back to the lower court for further
evidence.
17. Accordingly this appeal is allowed. The order in
I.A.No. 525 of 2004 in I.A. 525 of 2002 in O.S.No. 49 of 2002 on
the file of the Sub Court, Quilandy is set aside and that petition is
remanded back to that court for fresh disposal in accordance with
law after giving sufficient opportunity to both sides to adduce
further evidence. The parties are directed to appear before that
Court on 15.1.2010. The parties are directed to suffer their
respective cost in this appeal.
(K. M. JOSEPH)
Judge
(M.L. JOSEPH FRANCIS)
tm Judge
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