IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 Ex.FA.No. 39 of 2003(G) --------------------------------- E.P. NO. 3/2001 OF DISTRICT COURT, MANJERI. .................... APPELLANT/PETITIONER: ------------------------------------- ACHUTTY, D/O. MUHAMMED KOTTAKUNNAN, KARUPPATHU, PALAKKAPARAMBIL HOUSE, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON. RESPONDENTS/ RESPONDENTS: ----------------------------------------------- 1. ASHOK LEYLAND FINANCE LIMITED, III FLOOR, SUDHARSHAN BUILDING NO.86, CHAMIYARS ROAD, CHENNAI-600 086. 2. AHAMMEDKUTTY, PALLALITHODI HOUSE, P.O. KONDOTTY, MALAPPURAM DISTRICT. 3. SAIDALAVI, KARUPPATH HOUSE, P.O. KONDOTTY, MALAPPURAM DIST. ADV. SRI.VARGHESE C.KURIAKOSE FOR R1, ADV. SRI.M.SHAJU PURUSHOTHAMAN FOR R2 & R3. THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N.KRISHNAN, J ===================== EXFA No.39 OF 2003 ===================== Dated this the 31st day of July 2008 JUDGMENT This appeal is preferred against the order of the District Court, Manjeri in E.A.No.1 of 2003 in E.P.No.3/2001. The petitioner before the court below had moved an application under Order 21 Rule 58 C.P.C to adjudicate the claim regarding her rights and also to raise the attachment. Admittedly the respondent therein has obtained a decree against the husband of the petitioner. It can be seen that the contention of the claimant is to the effect that on 18.5.2001 she had purchased the property for valid consideration from her husband and therefore she is the owner in possession and as the attachment has taken effect only in the year 2002, there is no attachable right and therefore the attachment is to be raised and claim petition is to be allowed. On the other hand, the respondent would contend that it is only a sham document intended to defeat the decree holder and therefore the claim application is to be dismissed. 2. In the lower court Cws 1 to 3 were examined and Ext.A1 was marked. The court below held that the transfer is not a bona fide transfer EXFA 39/2003 -:2:- and it was intended to defeat the decree holder and therefore it dismissed the application. Learned counsel for the appellant made available before me a copy of the document for perusal. It is a document dated 18.5.2001. It is specifically stated therein that the consideration of Rs.60,000/- is taken for the purpose of discharging the small liabilities of the husband and the wife had paid the consideration of Rs.60,000/-. But, when examined, the claimant as well as her father would depose that the husband has misappropriated her gold ornaments and that in satisfaction of the same he had assigned the property in her favour. So even with respect to the consideration, there is a total deviation from the pleaded case as well as to prove the case. It has to be remembered that an arbitration award was passed on 8.5.2000 and the execution petition was filed on 15.6.2001. On 18.5.2001 a transfer is effected by the husband in favour of his wife and it is contended that such a transaction is bona fide transaction for valid consideration. The court also found that no material was produced to show that the claim petitioner is in exclusive possession of the schedule property and they are living separately. From the materials available, the court below held that Ext.A1 is only a sham document intended to screen the property and defeat the decree holder. On a reappraisal of the entire materials coupled with the documents it also leads me to the irresistible conclusion EXFA 39/2003 -:3:- that it is only a transaction to screen the property and defeat the decree holder from enjoying the fruits of the decree. The claim application is absolutely without any bona fides and therefore it was rightly dismissed by the court below. The appeal lacks merit and the same is dismissed but without any order as to costs. M.N.KRISHNAN, JUDGE Cdp/-