IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 FAO.No. 325 of 2010() --------------------- (OS.260/2009 of SUB COURT, MAVELIKKARA) .................... APPELLANT/IST DEFENDANT IN OS ---------------------------------------------------- K.G.GOPINATHAN NAIR, S/O.GOPALA PILLAI, KOZHIKALAPRASANTHA NILAYAM CHERUKOLE MURI, CHENNITHALA VILLAGE BY ADV. SRI.K.HARILAL RESPONDENTS/PLAINTIFF & 1ST DEFENDANT IN OS: ------------------------------------------------------------------------------- 1. SREEDHARAN, S/O.VELAYUDHAN, THALASSERIKUNNEL, PUTHUPPALLY NORTH MURI PUTHUPPALLY VILLAGE PINCODE – 690527. 2. KARTHIKEYAN, S/O.VELAYUDHAN, PARIPRAMATHU MANI NILAYATHIL, CHERUKOLE MURI, CHENNITHALA VILLAGE. PINCODE 690 105. R1 BY ADVS. SRI.M.V.THAMBAN SRI.R.REJI FOR R1 SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR R2 BY ADV. SRI.R.KRISHNA RAJ THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------ F.A.O.No.325 OF 2010 ------------------------------ Dated this the 9th day of December, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.This appeal is by the second defendant. He challenges an order by which the court below allowed the plaintiff's application for attachment before judgment and refused his request to lift the interim order already granted. 2.According to the plaintiff, the first defendant owes him money due under a Demand Promissory Note. He alleged that property belonging to the first defendant was fraudulently transferred to the second defendant. He, accordingly, wanted to have that sale deed also set aside to pave way for enforcement of the anticipated decree as against that property also. FAO.325/10 2 3.While the plaintiff speaks only about one credit, we cannot ignore the provisions of Section 53 of the Transfer of Property Act that a suit of the nature provided under Section 53(1) has to be on behalf of and for the benefit of all the creditors. Be that as it may, the second defendant shows title on the basis of a registered document. That transaction is not criticized as notional. It is criticized as a fraudulent one and without the support of sufficient consideration. That plea does not come from the transferor, but from a person who claims to be a creditor of the transferor. Not only that, there is no allegation worth acceptance at this stage that the property covered by the document in favour of the second defendant is likely to be transferred off depriving the plaintiff the fruits of any decree. Even if that be, the doctrine of lis pendens could always operate. At any rate, we do not FAO.325/10 3 find any ground to sustain the impugned order of attachment on the property, though the plaintiff may be justified in requesting for a consideration of the suit on merits at the earliest. For the aforesaid reasons, the impugned order is set aside and I.A.1667/09 filed by the plaintiff seeking attachment before judgment is dismissed without prejudice to the plaintiff requesting the court below for trial and disposal of the case on priority. We hasten to add that we have not expressed anything on the merits of the matter to affect rival claims at trial. The FAO is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, Judge. kkb.8/12.