High Court Kerala High Court

Siby Mani vs P.C.Thomas on 15 March, 2010

Kerala High Court
Siby Mani vs P.C.Thomas on 15 March, 2010
       

  

  

 
 
  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.
                    -------------------------------
                  C.R.P.NO.598 OF 2004 ()
                  -----------------------------------
          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

CRP.598/04 2

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

CRP.598/04 6

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