IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 6TH JULY 2011 / 15TH ASHADHA 1933 Ex.FA.No. 14 of 2011 ---------------------- AGAINST THE ORDER DT. 17.3.2011 IN E.A.NO.94/2009 IN E.P.NO.13/2007 IN OS.72/1998 of SUB COURT, NEDUMANGAD .................... APPELLANTS/CLAIM PETITIONERS: -------------------------------------------------- 1. SANTHOSH KUMAR, S/O.DAMODHARAN, KARTHIKA, POTTANCHIRA, KOTTAKKAKAM MURI, ARYANAD VILLAGE. 2. DEEPTHY.S., W/O.SANTHOSH KUMAR, RESIDING AT DO... DO... BY ADV. SRI.G.BENO RESPONDENT(S): COUNTER PETITIONERS ------------------------------------------------------------ 1. CHANDRIKA, KOTTARATHUPUTHEN VEEDU, KARIPOOR VILLAGE, NEDUMANGAD, KOTTARAKKARA, TRIVANDRUM - 695541. 2. RAGHUNATHAN, DEEPA BHAVAN, ISRO JUNCTION, KARIPOOR VILLAGE, NEDUMANGAD, KOTTARAKKARA, TRIVANDRUM - 695541. THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON 06/07/2011, THE COURT ON THE SAME DAY DELIVEREFD THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- Ex. F. A. NO. 14 OF 2011 ------------------------------------------ Dated this the 6th July, 2011 JUDGMENT K.M. Joseph, J. Appellants challenge the order passed in E.A.No.94/2009 in E.P. No.13/2007 in OS. No.72/98 on the file of the Sub Court, Nedumangad. By the said Application, the appellants sought lifting of the attachment. According to the appellants, who are husband and wife, the first appellant had purchased the property for valuable consideration by document No.2501/2007, the first appellant is abroad, the property has been possessed and enjoyed by the second appellant and, therefore, the Application was instituted by the second appellant. It is further stated that the second appellant got information about the pendency of the Suit attachment and sale proceedings and obtained direction from the appellant to file the petition. First appellant erected a building by EX.F.A.NO.14 OF 2011 2 spending a sum of Rs.10 Lakhs. It is further averred that the decree holder cannot sell the property. It is also stated that before purchasing the property, the appellants had verified the encumbrance free certificate and village documents and purchased the property convincing that there are no liabilities. The decree holder filed Counter. It is stated that there is collusion with the second counter petitioner. The second counter petitioner is none other than the father of the second appellant. The property was attached on 8.12.1998 and the document is executed without any consideration. It is a fraudulent transfer. The attachment was known to the appellants as early as on 8.12.1998. The transfer is hit by the provisions of Section 53 of the Transfer of Property Act. 2. The evidence consisted of Exts.A1 to A4 and the testimony of PW1. According to the evidence of PW1, there is no encumbrance and the building was put up costing Rs.20 Lakhs. It is further stated that her husband who is working abroad has spent money from his earning and also from the sale proceeds of another EX.F.A.NO.14 OF 2011 3 property, for purchase of the Ext.A4 property. 3. The court below found that the Suit was instituted in 1998. The notice was allegedly issued on 8.12.1998 to the judgment debtor. The court below also found that it is not reasonable to presume that the appellants were not aware of the pendency of the Suit and proceedings. In Ext.A1 document, the consideration shown is Rs.80,000/=. It is also found that from the contentions it would appear that the property would be worth Rs.2.5 Lakhs per cent and it is probable that he had purchased the property taking into consideration the encumbrance also. The decree debt is only Rs.5,27,869/=. It is also found that the claimant has purchased the property at a low price knowing encumbrance and the first respondent is not properly represented. 4. We heard the learned counsel for the appellants. It appears that there is an attachment in 1998. We got a Report from the court below and it is reported that the attachment was ordered in I.A. No.1038/1998 in OS.No.72/98 on 9.12.1998 and the EX.F.A.NO.14 OF 2011 4 attachment was effected on 16.12.1998. If that is so, we have already noted that the property was purchased for Rs.80,000/=. We also notice the relationship between the second respondent and the second appellant. We further notice that the sale itself is after the attachment. In such circumstances, we do not see any merit in the Appeal and it is dismissed. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. //True Copy// PS to Judge EX.F.A.NO.14 OF 2011 5