IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 CRP.No. 146 of 2005() --------------------------- AGAINST THE ORDER DATED 10/09/2004 IN EP 125/01 IN OS.283/1988 of PRL.SUB COURT, KOZHIKODE .................... REVN. PETITIONER(S):RESPONDENT/J.D. ------------------------------------------------- T. SIVADASAN, PEEDIKAKANDY, S/O. AYYAPPAN, NEDUNGOTTOOR AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.THOMAS ANTONY RESPONDENT(S): PETITIONER/DECREE HOLDER: ---------------------------------------------------------- REMA HARIDAS, D/O. ACHUTHAN, NEDUNGOTTOOR AMSOM AND DESOM, KOZHIKODE TALUK. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs M.N. KRISHNAN,J. ........................................... C.R.P.NO.146 OF 2005 ............................................. 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 : 2 : C.R.P.NO.146 OF 2005 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 : 3 : C.R.P.NO.146 OF 2005 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. : 4 : C.R.P.NO.146 OF 2005 cl : 5 : C.R.P.NO.146 OF 2005 M.N. KRISHNAN, J. ........................................... M.A.C.A/A.S/C.R.P.NO.OF ............................................. 17th January, 2011. J U D G M E N T/O R D E R