IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 CRP.No. 598 of 2004() --------------------- AGAINST THE ORDER DATED 22/01/2004 IN EP. 63/2000 IN EA.82/2003 of SUB COURT,KATTAPPANA .................... REVN. PETITIONER(S)/PETITIONER IN EA/DECREE HOLDER: --------------------------------------------------- SIBY MANI, S/O.MANI, THEKKEKARAKADUPPIL, CHAKKAKANAM BHAGOM, NEDUMKANDOM KARA, KAIKOONTHAL VILLAGE. BY ADV. SRI.P.JACOB VARGHESE, SENIOR ADVOCATE SRI.VIVEK VARGHESE P.J. RESPONDENT(S)/CR.PETITIONERS IN EA/JUDGEMENT DEBTOR AND HIS TRANSFEREE: ------------------------------------------------------------ 1. P.C.THOMAS S/O.CHACKO, KONNAKKAL HOUSE, BALAGRAM KARA, PAMPADUMPARA VILLAGE. 2. P.R.REGU S/O.P.K.RAGHAVAN, PUTHUPARAMBIL HOUSE, SANYASIODA.P.O., KALLAR, PAMPADUMPARA VILLAGE. ADV. SRI.A.T.ANILKUMAR FOR R2 SMT.V.SHYLAJA FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO.1571/2004 IN CRP.NO.598/2004 DISMISSED. 15.3.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE 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