IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 WP(C).No. 12322 of 2009(I) ------------------------------------- AGAINST THE ORDER DATED 30/09/2008 IN EP.51/05 IN EA.280/2007 OF SUB COURT,KATTAPPANA. .................... PETITIONER: ------------------- T.M. ABRAHAM @ JOY, S/O. MATHAI, TINTU BHAVAN, PATHIRICKAL KARA, PATHANAPURAM VILLAGE, PATHANAPURAM TALUK. BY ADVS. SMT.S.K.DEVI, MR.SANTHOSH P.ABRAHAM. RESPONDENTS: ------------------------ 1. M.T. THOMAS, S/O. CHERIYAN THOMAS, MADAKKAVUMKAL HOUSE, MLAMALA KARA, MANJUMALLAY VILLAGE, VANDIPERIYAR. 2. MARYKUTTY THOMAS, D/O. CHERIAN THOMAS, MADAKKAVUMKAL HOUSE, MLAMALA KARA, MANJUMALLAY VILLAGE, VANDIPERIYAR. 3. JACOB T. OOMMAN, S/O. OOMMAN, THUNDIYAMKULATHU HOUSE, MLAMALA KARA, MANJUMALLAY VILLAGE, VANDIPERIYAR. R1 & R2 BY ADV. MR.A.C.DEVASIA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.12322 of 2009 - I --------------------------------- Dated this the 15th day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following relief: “To call for the records leading to issuance of Ext.P1 order set aside Ext.P1 order dated 30.9.2008 in E.a.No.280/2007 in E.P.No.51/2005 of the court of the Sub Judge, Kattappana.” 2. An order passed by the Sub Court, Kattappana in an execution proceedings in E.P.No.51/2005 in O.S.No.182/2002 on an application moved by the decree holder, the 1st respondent herein, for declaration of a transfer effected by the judgment debtor, 3rd respondent herein, is a fraudulent transfer and as such to be declared by the court is challenged in the petition. After issuing notice to the transferee, the present petitioner, and hearing the counsel for the decree holder, judgment debtor and the transferee, the learned Sub Judge passed Ext.P1 order. Taking note that the transfer was effected by the judgment W.P.(C).No.12322 of 2009 - I 2 debtor after an application for attachment was moved by the decree holder and receiving notice thereof, learned sub Judge has passed Ext.P5 order in the following lines: “by recording the said transaction this E.P. is closed in favour of the decree holders”. 3. Correctness and propriety of that order is impeached by the petitioner, the transferee of the property from the judgment debtor invoking supervisory jurisdiction of this Court vested under Article 227 of the Constitution of India. 4. I heard the counsel on both sides. 5. From the submissions made and taking note of the facts and circumstances presented, I find the order passed by the learned Sub Judge is patently erroneous and unsustainable in law. Section 53 of the Transfer of Properties Act contemplates a suit at the instance of all the creditors when a transfer effected by their debtor is vitiated by fraud to have a declaration that such transfer made is fraudulent. In such suit, the plaintiff represents all the creditors of the judgment debtor and therefore all the creditors of such judgment debtor should be given notice W.P.(C).No.12322 of 2009 - I 3 by publication. An adjudication as to whether the transfer impeached is fraudulent is also necessary after affording opportunities to both sides to establish their respective case. Procedure followed by the learned Sub Judge on the basis of an application moved in the execution proceedings to declare that a transfer is fraudulent as if such recording is sufficient without conducting an adjudication of the issues involved, is incorrect and unsustainable. But I make it clear that as fraud vitiates all transactions right from the inception even without making an application which led to Ext.P5, it is open to the decree holder to challenge the transfer as and when a claim is set up on the basis of such transfer. So, without prejudice to the right of the decree holder to challenge the transfer made in favour of the petitioner as a fraudulent transfer, if need be, at the appropriate stage in the execution proceedings, Ext.P5 order is set aside. The writ petition is disposed of as indicated above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-