IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 598 of 2004()
1. SIBY MANI, S/O.MANI, THEKKEKARAKADUPPIL,
... Petitioner
Vs
1. P.C.THOMAS S/O.CHACKO, KONNAKKAL HOUSE,
... Respondent
2. P.R.REGU S/O.P.K.RAGHAVAN,
For Petitioner :SRI.P.JACOB VARGHESE (SR.)
For Respondent :SRI.A.T.ANILKUMAR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :15/03/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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C.R.P.NO.598 OF 2004 ()
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Dated this the 15th day of March, 2010
O R D E R
The revision is directed against the order passed by the
learned Sub Judge Kattappana in E.A.No.82 of 2003 in
E.P.No.63 of 2000 in O.S.No.91 of 1997. Revision petitioner is
the decree holder. The decree which is being executed is one
passed in a suit for money. Before passing of the decree there
was an interim attachment over an item of immovable
property belonging to the defendant/judgment debtor. That
attachment, it is submitted, had been made absolute by the
trial court before passing of the decree. In execution of the
decree, when the decree holder proceeded for sale of that
property and in fact at the stage after settling proclamation
and publication and the property brought for sale, a third
party moved an application claiming title over the property
under Order XXI Rule 58 of the Code of Civil Procedure. The
decree holder had resisted that application in which disputing
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the claim raised by that third party, inter alia, it was
contended that if at all there was a transfer, that transfer is a
fraudulent transfer hit by Section 53 of the Transfer of
Property Act as it had been effected by the transferee
(defendant) to defeat his creditors. The learned Sub Judge,
after considering the materials placed over the claim petition
(E.A.No.21 of 2002) allowed the claim and lifted the
attachment. While disposing of that claim petition in its order,
the learned Sub Judge reserved the right of the decree holder
to canvass his case that the transfer in favour of the claimant
was vitiated as a fraudulent transfer under Section 53 of the
Transfer of Properties Act in proper proceedings. Pursuant to
that order, the decree holder moved an application E.A.No.82
of 2003 seeking a declaration that the property over which the
attachment subsisted, but, which had been lifted allowing the
claim, was a fraudulent transfer covered by Section 53 of the
Transfer of Property Act. In that application, the judgment
debtor and also the claimant were made as the respondents.
The 2nd respondent, the claimant, alone resisted that
application filing objections in which among other contentions
CRP.598/04 3
the maintainability of the petition in the execution court was
also challenged. The learned Sub Judge after considering the
materials placed and hearing both sides dismissed the
application of the decree holder, and that order is challenged
in the revision.
2. I heard the counsel on both sides. The learned
counsel for the decree holder relying on a number of judicial
pronouncements rendered by this Court and also that of the
apex court contended that the petition filed before the
execution court seeking a declaration that a transfer effected
by the judgment debtor is vitiated as a fraudulent transfer
under Section 53 of the Transfer of Property Act is perfectly
maintainable. To my query, the learned counsel for the decree
holder submitted that such an application is maintainable
under Order XXI Rule 58 (2) of the CPC. I cannot agree.
Order XXI Rule 58 reads thus:
58. Adjudication of claims to, or
objections to attachment of, property:-
(1) Where any claim is preferred to, or any
CRP.598/04 4
objection is made to the attachment or, 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-
(a) 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.
(sub rules (3) to (5) are omitted
as not relevant)
According to the counsel, the application moved by the decree
holder is entertainable under sub rule (2) of Rule 58 of Order
XXI of the CPC. True, that all questions relating to right, title
CRP.598/04 5
or interest in the property attached as between the decree
holder/judgment debtor and also the claimant have to be
decided when a claim petition is moved under Order XXI Rule
58 of the CPC by a third party over a property which had been
attached as if it belonged to the judgment debtor for
satisfaction of the decree. In fact, it is a triumvirate
proceeding wherein the claimant, who have set up the claim
over the attached property, the decree holder and judgment
debtor are all necessary parties. As between them the
decision entered in that proceedings is conclusive and final
and it is open to a challenge only in the manner provided by
the Code. The order passed under Order XXI Rule 58 of the
CPC is deemed to be a decree from which an appeal is
provided. Admittedly, in the claim petition moved by the
claimant, an adjudication was made by the court as
contemplated by the Rule and a decision had been entered
upholding the right, title and interest of the claimant over the
property, with the result the attachment was lifted. The
disposal of the claim petition by the order of the court which is
deemed to be a decree remains unchallenged by the decree
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holder. The arguments canvassed by the learned counsel that
after the disposal of such petition in view of the observations
made by the execution court that his right to challenge the
transfer effected in favour of the claimant was vitiated by
fraud as under Section 53 of the Transfer of Properties Act
can be considered and adjudicated upon under sub rule (2) of
Rule 58 of Order XXI of the CPC is meritless since that rule is
applicable only in adjudication of a claim petition. Order XXI
of the CPC does not confer any right on a decree holder nay to
any other person to call upon the execution court to determine
the proprietary title of the judgment debtor over any property
belonging to him whether it is vitiated as a fraudulent transfer
or otherwise. If at all the decree holder has any such case, it
is for him to challenge it by way of a separate suit as provided
by law. Whether such a suit is entertainable in respect of a
property under attachment, after a decision is entered in a
proceeding under Order XXI Rule 58 of the CPC, which I have
already pointed out is a triumvirate proceeding, wherein the
judgment debtor is also a party, is a different question to be
considered, over which I am not expressing any opinion in the
CRP.598/04 7
present case. The dismissal of the petition moved by the
decree holder by the court below, in the above circumstances,
does not suffer from any infirmity, leave alone jurisdictional
infirmity, and hence the revision is dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp