IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 WP(C).No. 34316 of 2009(H) -------------------------- OPMV.458/1992 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... PETITIONER(S): -------------------------- BABU, S/O V.C.THOMAS, VATTAVAYALLIL HOUSE, PUTHACHIVAYALKARA, MARAYOOR VILLAGE, DEVIKULAM TALUK, MARAYOOR. BY ADVS. MR.KKM.SHERIF, MR.LAL K.JOSEPH, MR.A.A.ZIYAD RAHMAN, MR.V.R.REKESH. RESPONDENT(S): --------------------------- 1. JOHNSON, S/O.XAVIOUR, MATHIRAPPILLIL HOUSE, KEEZHATHOOR KARA, KEEZHATHOOR VILLAGE, DEVIKULAM P.O. 2. V.C.THOMAS, VATTAVAYALLIL HOUSE, PUTHACHIVAYALKARA, MARAYOOR VILLAGE, DEVIKULAM TALUK, MARAYOOR. 3. THANKARAJ, KUMBATTOMKUZHI COLONY, MARAYOOR KARA, MARAYOOR VILLAGE, MARAYOOR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S. SIRI JAGAN, J ................................................ W.P(C) No. 34316 of 2009 ................................................. Dated this the 10th day of December, 2009 J U D G M E N T The petitioner is the son of the 2nd respondent. The 2nd respondent was the owner of a Motor Vehicle involved in an accident in respect of which award was passed by the Motor Accident claims Tribunal, Thodupuzha in O.P.(M.V.) No. 458 of 1992, awarding compensation to the 1st respondent. The 1st respondent moved the Tribunal for attachment of properties belonging to the 2nd respondent for realization of the award amount. Attachment was ordered by the Tribunal. Thereafter alleging that the 2nd respondent had transfered the property in question to the petitioner, even before the passing of the award, the petitioner filed E.A. No. 38 of 2006 before the Tribunal seeking lifting of the attachment, which was rejected by Ext.P2 order. The petitioner is challenging Ext.P2 order in this writ petition. Petitioner’s contention is that by Exts.P4 and P5 the judgment and decree in O.S. No. 283 of 1993, before the Sub- Court, the Sub Court has dismissed the suit filed by the 1st respondent seeking to set aside the sale in favour of the W.P(C) No. 34316 of 2009 -2- petitioner. Therefore, according to the petitioner, principles of resjudicata would bar the 1st respondent from proceeding against the property in question insofar as the property has become absolutely that of the petitioner, even prior to the passing of the award. 2. I have heard the counsel for the petitioner. 3. Ext.P4 is the judgment of the civil court. In paragraph 17 of the same, the Sub Court has specifically held thus: “17. The third defendant was examined as DW3. He stated that he was put in possession of E and F schedule items as early as in 1991 and that he paid Rs.6,000/-. DW3 stated that he was put in possession of the property when he advanced the amount in 1991. The testimony of PWs 2 and 3 that they were put in possession of the property prior to the date of sale deed and that there was payment of consideration in 1991 are found inconsistent with the recitals in Ext.A1 and A2. The second defendant was aged 24 and the third defendant was aged only 22 on the date of the sale deeds. The evidence of DWs 1, 2 and 3 indicates that the payment of consideration recited in Ext.A1 and A2 is not genuine and that the documents were executed without consideration and without the junction defendants 2 and 3. Soon after the first defendant obtained of the petition in OP (MV) 458/92 filed by the plaintiff. It is evident that the first defendant has attempted to create documents with intention to shield his property from the reach of the plaintiff, anticipating that the OP will be decided in favour of the plaintiff. Fraud is patent in the transaction. There is lack of bonafides. There is no reliable evidence to hold that it was executed for consideration. Hence I find that the Ext.A1 and A2 were fraudulently created without consideration by the first defendant. These issues are thus answered.” W.P(C) No. 34316 of 2009 -3- 4. Of course the suit was dismissed on a technical ground. But the above finding in the judgment has become final in so far as the petitioner has not chosen to challenge the same although he was a party to the suit. That finding categorically shows that the petitioner and the 2nd respondent have played a fraud not only on the 1st respondent but also on the Tribunal by transferring the property to the petitioner to defeat the claim of the 1st respondent for compensation. I am not satisfied that such a person is entitled to the discretionary remedy under Article 226 of the Constitution of India. Accordingly the writ petition is dismissed. sd/- S. SIRI JAGAN, JUDGE rhs // True copy // PA to Judge