IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 Ex.FA.No. 32 of 2010() ---------------------- AGAINST THE ORDER DT.9.4.2010 IN E.A.NO.503/08 IN EP 160/2003 IN OS.174/1997 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/RESPONDENT NO.1/DECREE HOLDER ----------------------------------------------------------- RAJAN,S/O.RAMAN,AGED 58 YEARS, KUNDAKUMARI,PULINELLI KOTTAYI AMSOM, ALATHUR TALUK,PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN PETITIONER & RESPONDENT NO.2/CLAIMANT & JUD.DEBTOR ----------------------------------------------------------------- 1. GOPALANKUTTY,AGED 64 YEARS, S/O.ARIMBANTHODI KALYANI AMMA,MANNUR AMSOM, MANNUR VILLAGE,PALAKKAD TALUK. 2. VISWANATHAN,S/O.KOODANTHODE ANDI, AGED 57 YEARS,CHUNGAMANNAM AMSOM,ALATHUR TALUK, PALAKKAD. THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON 01/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- Ex.F.A.No.32 OF 2010 ------------------------------------------- Dated this the 1st day of July, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. This is an appeal by the decree holder. He obtained an order of attachment before judgment upon institution of a suit for recovery of money. The fact of the matter remains that the property attached had been sold by the defendants much before the suit was instituted. Later, in execution, a claim petition was filed by the subsequent transferee. That has been allowed by the court below overruling the contention that the transaction in favour of the claim petitioner is hit by Section 53 of the Transfer of Property Act. We do not find any illegality in the impugned order. The court below has come to the correct conclusion that the sale in favour of the third party having been made before the institution of the suit, the plaintiff had not Ex.FA.32/10 2 discharged his burden of proving that the sale was in fraud of creditors. The appeal fails. The same is accordingly dismissed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.12/07.