IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 RSA.No. 136 of 2008(G) -------------------------------------- AS.36/2003 of ADDL.SUB COURT,NORTH PARAVUR OS.433/1998 of MUNSIFF COURT, NORTH PARAVUR .................... APPELLANT/IST RESPONDENT/R1 & PLAINTIFF: SASI, S/O. SANKU,KANJIRATHINGAL, THIRUVALLOOR KARA, ALANGAD VILLAGE, PARAVOOR TALUK. BY ADV. SRI.K.K.SATHEESH RESPONDENTS/APPELLANT & R2/2ND DEFENDANT: 1. JOMON, S/O. CHERIYAN MAMPILLY, PARAVOOTHARA MURI, PARAVOOR PAKUTHY,PARAVOOR TALUK. 2. MADHUSOODANAN, S/O.SURENDRAN KANJIRATHINGAL, THIRUVALLOOR KARA ALANGAD VILLAGE. BY ADV. SRI.C.A.CHACKO FOR R1 (CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No. 136 of 2008 --------------------------- JUDGMENT The plaintiff in O.S.No.433/98 on the file of the Munsiff's Court, North Parur is the appellant. The first respondent filed I.A.No.221/99 advancing claim to the property attached before judgment at the instance of the appellant/plaintiff. The claim is that he purchased the property from one Murukesan under Exhibit A1 on 28.7.1997, who in turn, has purchased the property from the second respondent/defendant on 26.4.1997. The plaintiff sought to attach the property as if it is property belonging to the second respondent/defendant. 2. The evidence in the case shows that the second respondent executed a pro note in favour of the appellant/plaintiff on 19.2.1997 for a consideration of Rupees fifty thousand and the suit O.S.No.433/98 was filed for recovery of amounts due under the said promissory note on 17.6.1998. On the same day, the attachment was ordered. Though RSA 136/08 2 the second respondent, who was the defendant in that suit, entered appearance, he did not resist the suit and the suit was decreed ex parte on 21.12.1998. The claim petitioner/first respondent contended that the property having been sold to one Murukesan on 26.4.1997, even before the institution of the suit on 17.6.1998 and from the said Murukesan he having got assignment under Exhibit A1 sale deed on 28.7.1997, without notice of any claim for the first respondent as against the second respondent, he is a bona fide purchaser of the attached property and that therefore, the attachment should not have been lifted by the first appellate court allowing the claim petition reversing the order of the trial court passed in I.A.No.221/99. 3. It is contended by the counsel for the appellant that the finding of the first appellate court be reversed and the matter be remitted back to the trial court enabling the appellant/plaintiff RSA 136/08 3 to establish that the transfer by the second respondent of the property under attachment was one in fraud of creditors and therefore, the claim advanced by the first respondent was not liable to be upheld. 4. I see from the order passed by the trial court that the plaintiff has not entered the witness box to tender any evidence countering the claim advanced by the first respondent tendering evidence as PW1 and producing the sale deed in his favour as Exhibit A1. His contention was only that Exhibit A1 was brought into existence by collusion between the first and second respondents, to which Murukesan was also a party. It was also contended that any document executed in favour of Murukesan by the debtor/the second respondent is also void. It was up to the appellant/plaintiff to adduce evidence and substantiate his case that the document executed in favour of Murukesan by the second respondent/defendant in the suit is in fraud RSA 136/08 4 of creditors and that Murukesan was transferring the property to the first respondent in collusion with and at the instance of the second respondent/ defendant with a view to screen the property from creditors like the appellant/plaintiff. The appellant/plaintiff having not adduced any evidence on those aspects, it is futile for him to contend before this Court that the attachment should not have been lifted and that the claim should not have been allowed. There is no substantial question of law and much less, any substantial question of law that arises for consideration in this Regular Second Appeal by this Court. In the result, I dismiss this Regular Second Appeal in limine, refusing admission. 30th June, 2008 (K.P.Balachandran, Judge) tkv