C.R. No.5978 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.5978 of 2009 Date of Decision: 07.05.2010. Lakhbir Singh .……Petitioner Versus Avtar Singh and another ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. S. S. Rangi, Advocate with Mr. Jagnahar Singh, Advocate for the petitioner. Ms. Ritu Punj, Advocate for respondent No.1. None for respondent No.2. L. N. MITTAL, J (ORAL) Lakhbir Singh-objector has filed instant revision petition under Article 227 of the Constitution of India assailing order dated 04.10.2005 (Annexure P-1) passed by the Executing Court i.e learned Additional Civil Judge (Senior Division), Khanna thereby dismissing the objections filed by the petitioner in execution petition instituted by Avtar Singh-respondent No.1 decree-holder (DH) against Hardev Singh-respondent No.2-judgment debtor (JD). The petitioner has also challenged appellate order dated 22.10.2008 (Annexure P-2) passed by learned Additional District Judge, Ludhiana thereby dismissing the appeal preferred by the petitioner- Objector against order (Annexure P-1) passed by the Executing Court. In execution petition filed by respondent No.1 against C.R. No.5978 of 2009 -2- respondent No.2 for execution of decree dated 06.06.2000 (Annexure P-3) for recovery of money, land was attached. Petitioner filed objection petition (Annexure P-10) alleging that he had purchased 5 Bighas 5 ½ Biswas land from JD-respondent No.2 vide two sale deeds both dated 04.06.1999 and the said land was not under attachment, when the petitioner purchased the same. Since then petitioner is owner of the said land and he is bona fide purchaser thereof for consideration without notice of suit instituted by DH-respondent No.1. Consequently, the said land owned by petitioner could not be attached in execution petition filed against JD- respondent No.2. Decree-holder in reply to the objections inter alia pleaded that sale of the attached land in favour of objector by JD is sham transaction. The objections have been filed by petitioner in connivance with JD-respondent No.2 as they are relatives. Petitioner is real brother-in-law of JD-respondent No.2. The sale deeds were executed during pendency of the suit filed by decree- holder against the JD-respondent No.2. The sale deeds were executed to only deprive the decree-holders of the fruits of their decrees and the sale deeds are fraudulent transactions without consideration. Learned Executing Court vide impugned order dated 04.10.2005 (Annexure P-1) dismissed the objection petition filed by the petitioner. Appeal preferred by the petitioner-objector against the said order has been dismissed by learned Additional District Judge, Ludhiana vide impugned order dated 22.10.2008 (Annexure P-2). Feeling aggrieved, the objector has preferred the instant revision C.R. No.5978 of 2009 -3- petition. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that sale in favour of petitioner was made before attachment of the said land and, therefore, the petitioner is saved by Section 64(2) of the Code of Civil Procedure (in short, C.P.C). The contention cannot be accepted because Sub-Section (2) is exception to Sub-Section (1) of Section 64 C.P.C which lays down that any private transfer of property after attachment shall be void as against all claims enforceable under the attachment. Sub-Section (2) of Section 64 C.P.C provides that nothing in the Section shall apply to any private tranfer of property entered into and registered before the attachment. It is correct that the sale of disputed land by JD in favour of the petitioner is not hit by Section 64(1) in view of Section 64(2) C.P.C. However, the said sale is hit by Section 53 of the Transfer of Property Act which provides that every transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Accordingly, the question to be determined in the instant case is whether the transfer of the disputed land by JD in favour of the petitioner has been made with intent to defeat or delay the creditors of the transferor i.e JD. To determine the aforesaid question, it is significant to notice that the sale deeds by JD in favour of petitioner were executed after the filing of suits by the DH-respondent No.1 and by an other creditor against JD-respondent No.2. C.R. No.5978 of 2009 -4- It is also admitted fact that petitioner's sister is married with JD-respondent No.2. They are thus close relatives. The petitioner also admitted his signatures on partnership deed depicting that the petitioner and JD-respondent No.2 were also partners. In view of these circumstances, the Courts below have rightly drawn the inference that sale of disputed land by JD-respondent No.2 in favour of the petitioner was made with intent to defeat and delay the creditors i.e DH-respondent No.1 and other creditors. No fault can be found with the aforesaid conclusion of the Courts below. There cannot be any direct evidence regarding the alleged fraud or collusion because DH-respondent No.1 is not privy or party to the said transaction. By its very nature, the transaction between the petitioner and respondent No.2, who are close relatives, was a secret arrangement between them and inference of fraud could be drawn only from circumstances in the very nature of things. There could be no direct evidence available with DH-respondent No.1 to substantiate his plea. For the reasons recorded hereinabove, I find no illegality in the orders of the Courts below. Objection petition filed by petitioner has been rightly dismissed by the Courts below. The revision petition being without any merit is accordingly dismissed. ( L. N. MITTAL ) JUDGE 07.05.2010. A. Kaundal