IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 146 of 2005()
1. T. SIVADASAN, PEEDIKAKANDY,
... Petitioner
Vs
1. REMA HARIDAS, D/O. ACHUTHAN,
... Respondent
For Petitioner :SRI.THOMAS ANTONY
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :28/01/2011
O R D E R
M.N. KRISHNAN,J.
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C.R.P.NO.146 OF 2005
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Dated this the 28th day of January, 2011.
O R D E R
This revision is preferred against the order of the
Subordinate Judge’s Court, Kozhikode in E.P.No.125/2001 in
O.S.No.283/1988. The execution petition was filed for
realisation of the amount due to the decree holder from the
judgment debtor by the sale of the property. The decree
holder has obtained a decree for realisation of ` 90,696/=
and he wanted to sell the property.
2. The judgment debtor would resist the claim
contending that he had no subsisting right over the property
and the 1/4th share which he had over the property had been
transfered in favour of others and therefore, there cannot be
any proceedings against the property.
3. In the trial court, PW1 and RW1 were examined and
Exts.A1,A2 and B1 to B4 were marked. The trial court on
appreciation of the materials held that the transfer is hit by
Section 53 of the Transfer of Property Act and therefore
ordered sale of the property. It is against that decision, the
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revision is preferred.
4. Heard the young counsel for the revision petitioner.
He had persuasively submitted before me that the court
below should not have ordered sale of the property for the
reason that there was no debtor creditor relationship between
the decree holder and the judgment debtor at the time of the
sale and that he owes some amount to his sister and
therefore had transferred the property.
5. The learned Subordinate Judge in para-5 has dealt
with the matter in detail. He had considered the evidence of
the present revision petitioner/respondent wherein he has
admitted that he had received Ext.A1 notice from the decree
holder as early as on 28.1.1988 demanding the amount and
the further recital in the notice is that he shall not transfer
his property as he is intending to proceed against the
judgment debtor in a court of law. On receipt of the notice,
the judgment debtor transfered his right in favour of his
brothers and sisters.
6. Whether this transfer would amount to a
fraudulent transfer attracting Section 53 of the TP Act is the
question to be considered. Under Section 53 of the TP Act
every transfer of immovable property made with intent to
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defeat or delay the creditors of the transferor shall be
voidable at the option of any creditor so defeated or delayed.
7. Ext.A1 in crystal clear terms intimates the
judgment debtor namely the revision petitioner that he has to
pay the amount due to the decree holder and further it
recites that he shall not transfer the property. But on
receipt of the notice, in stead of discharging the debt, the
revision petitioner had transfered his right in favour of his
sisters.
8. I think the necessary ingredient to constitute a
fraudulent transfer is writ large on the face of the transfer
itself. It is to safeguard the interest of the persons who are
likely to be defeated in this way that Section 53 of the TP
Act has been engrafted by the legislation. Therefore, I do
not find any error committed by the court below or any
illegality committed by the court below so as to warrant
interference exercising the jurisdiction under Section 115 of
the Civil Procedure Code.
The revision lacks merit and hence dismissed.
M.N. KRISHNAN, JUDGE.
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cl
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M.N. KRISHNAN, J.
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M.A.C.A/A.S/C.R.P.NO.OF
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17th January, 2011.
J U D G M E N T/O R D E R