IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 Ex.FA.No. 36 of 2008(A) ----------------------- AGAINST THE ORDER DATED 25/01/2008 IN EA 666/05 IN EP 421/04 IN OS.625/1998 of PRINCIPAL SUB COURT,ERNAKULAM .................... : APPELLANT/CLAIM PETITIONERS -------------------------------------------- 1. T.M.MUHAMMED SHAFFI, S/O.MUHAMMED, TYYALAN HOUSE, CHOORAKODE KARA, PATTIMATTOM, KUNNATHUNADU. 2. MUHAMMED RAFEQ, S/O.PAREETH, VELIAKAMATTOM PEDIKAYIL, ERUMATHALA KARA, ALUVA WEST VILLAGE, ALUVA. 3. ARIFA, W/O.E.A.JAMAL, ELLICKAL HOUSE, CHANGANPUZHA NAGAR, THRIKKAKARA NORTH VILLAGE. 4. SHEELA SAVIOUR, W/O.SAVIOUR, H.NO.60/2053, THOTTIYIL HOUSE, KALOOR, KOCHI-17. 5. K.B.MUHAMMED KUNJU, S/O.K.K.BEERAN, KANNOTH HOUSE, CHANGANPUZHA NAGAR P.O. 6. E.A.JAMAL, S/O.ALI, ELLICKAL HOUSE, CHANGANPUZHA NAGAR P.O. 7. NANDAKUMAR, S/O.PARAMESWARAN NAIR, INDIRA NIVAS, H.M.T.COLONY P.O. BY ADV. SRI.DINESH R.SHENOY SRI.P.J.MATHEW RESPONDENTS: ------------- 1. P.K.KUMARAN, S/O.LATE KANDAN, PUTHENVEETTILPARAMBU, PALLILAMKARA, KALAMASSERY P.O. 2. T.K.CHANDRASEKHARAN NAIR, CHEANGARAPUTHENPURAYIL, THEVAKKAL HOUSE, V.K.COLONY P.O. 3. LAKSHMI KUTTY AMMA, W/O.CHANDRASEKHARAN NAIR, DO. DO,. 4. MONY, S/O.CHANDRASEKHARAN NAIR, DO. DO,. 5. MURUKAN, S/O.CHANDRASEKHARAN NAIR, DO. DO. 6. HARI, S/O.CHANDRASEKHARAN NAIR, DO.DO. BY ADV. SRI.K.P.ARAVINDAKSHAN FOR R1 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN IA NO.764/2008 DISMISSED. 25/6/2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - Ex.F.A. No.36 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of June, 2008. JUDGMENT Ramachandran Nair, J. This appeal is filed by the claimants in a claim petition filed under Order 21 Rule 38 C.P.C. seeking to release the attached property in execution proceedings in O.S. No.625/1998 of the Principal Sub Court, Ernakulam. The court below, as per the impugned order, dismissed the application filed by the appellants. 2. The decree is one for recovery of money in favour of the first respondent. Respondents 2 to 6 herein are the judgment debtors. As per the decree, the plaintiff was allowed to recover an amount of Rs.7,31,318.25 with future interest from the judgment debtors. The Sub Court, on the plea of the decree holder, ordered attachment of the properties scheduled in the petition filed by the decree holder in E.P. No.421/2004. 3. The appellants claimed that the properties have been purchased by different sale deeds by them before the properties were attached in the execution petition. The details of such sale deeds are given in para 4 of the memorandum of appeal. In the view we propose to take, the respective Ex.F.A.36/2008 -2- contentions of the parties need not be elaborately stated herein. 4. We have heard learned counsel for the appellants Shri Dinesh R. Shenoy and Shri K.P. Aravindakshan, learned counsel for the first respondent. 5. Learned counsel for the appellants contended that the reasoning adopted by the court below to dismiss the claim petition is incorrect. It is pointed out that the application was mainly rejected on the finding that the appellants had purchased the property without further verification as to whether there is any suit or liability pending against the judgment debtors. It is submitted that the true test going by Section 53 of the Transfer of Property Act, is whether the transfer is made with an intent to defeat or delay the creditors of the transferors and there is no clear finding on that aspect in the order passed by the court below. 6. Learned counsel for the first respondent submitted that the first respondent had produced various materials before the court below to prove that the appellants had knowledge about the passing of the decree and in fact there were negotiations in regard to the subject matter of dispute wherein appellants 2 and 4 had participated. It is stated that the appellants' claim petition is not allowable in the light of various facts pleaded by the first respondent in the objection to the claim petition. It is also pointed out Ex.F.A.36/2008 -3- that the first respondent had filed a suit for injunction as O.S.No.1793/2004 on coming to know of the arrangement entered into between appellants 2 and 3 and respondents 2 and 3 for the transfer of the property. By referring to the documents produced by the first respondent before the court below including the written statement filed in O.S.No.1793/2004 before the Munsiff's Court, Ernakulam, the learned counsel submitted that the transfer of the property is fraudulent and with malafide intention to defeat and delay the creditors of the judgment debtors. It is submitted that the second appellant was a mediator in between the judgment debtors 1 and 2 and the decree holder which fact will be evident from the various averments made by him in the counter affidavit filed in this appeal as well as in the objections filed before the trial court. 7. We are of the view that the crucial aspect whether the transfer of the properties in favour of the appellants was made with intent to defeat or delay the creditors, has not been correctly gone into by the court below. After referring to the payment made by the appellants to clear off the arrears due to the Service Co-operative Bank prior to the execution of the sale deeds, it was concluded that the appellants had purchased the property without further verification as to whether there is any other suit or liability pending against the judgment debtors. The said approach, according to us, Ex.F.A.36/2008 -4- does not satisfy the requirements of Section 53 of the Transfer of Property Act. Absence of enquiry by itself cannot mean that there was intention to defraud. Something more is required to be proved to attract Section 53 of the T.P. Act. Further, the various aspects pointed out by the decree holder in his objections have also not been adverted to. 8. Therefore, the matter requires reconsideration. The impugned order passed by the court below in E.A.No.666/2005 in E.P.No.421/2004 in O.S.No.625/1998 is set aside. The court below is directed to reconsider the matter afresh after affording all opportunities to the appellants and the respondents to adduce evidence, if necessary. Needless to say that the contentions raised by both parties will be gone into before arriving at a decision on the claim petition. The security deposit by way of fixed deposit for Rs.7.5 lakhs furnished by the appellants pursuant to the order in W.P.C.No.22992/2005 will be kept as such pending the matter. The parties are directed to appear before the court below on Ex.F.A.36/2008 -5- 23.7.2008. The appeal is disposed of as above. There will be no order as to costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/