IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 22798 of 2009(O) --------------------------------------- OS.NO.153/2007 OF SUB COURT, PATHANAMTHITTA. .................... PETITIONER: ------------------- JAYARAJA KUMAR, S/O. SIVARAMAN NAIR, ARAMOM, THEPPUPARA P.O.,EZHAMKULAM MURI, EZHAMKULAM VILLAGE, ADOOR TALUK. BY ADV. MR.D.KISHORE. RESPONDENTS: ------------------------ 1. P.J.SURESH, S/O. JANARDHARAN, NIKIL BHAVAN, ARUKALICKAL WEST MURI, EZHAMKULAM VILLAGE, ADOOR TALUK, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, T.VINI,S/O.THANKAPPAN, BALAJI BHAVAN, MAROOR MURI, PATHANAMTHITTA DISTRICT. 2. G.SANKAR, S/O. GOPALAN NAIR, GOWRISANKAR, SASTHAMANGALAM VILLAGE, POOJAPPURA P.O., THIRUVANANTHAPURAM. 3. S.SATHYAKUMAR, S/O. GOPALAN NAIR, F-322 BLOCK, SONA VIHAR, KAMANAHALLI, BANGALORE. 4. P.KISHORE, S/O. K.N.PONNAPPAN, NARMADA APARTMENTS,PETTAH P.O., THIRUVANANTHAPURAM. 5. S.B.JAYARAMAN,S/O.N.BALAKRISHNAN PILLAI, AMMALAYAM,A-26,PANICKER'S LANE, SASTHAMANGALAM P.O.,THIRUVANANTHAPURAM. 6. T.K.GANGADHARAN PILLAI,S/O. NARAYANAN NAIR, THACHIRETHU VEEDU,KURITTISSERI VILLAGE, CHENGANNOOR TALUK. 7. P.K.RAVEEDNRANATHA PANICKER, S/O.N.V.KESAVA PANICKER, PLAMOOTTIL PUTHENPURA, MADAPPALLY VILLAGE, CHANGANASSERI TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.22798 OF 2009 -------------------------- Dated this the 21st day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading to the passing of Ext.P7 order in I.A No.1385/2007 on the file of Sub Court, Pathanamthitta and quash the same. ii) Grant such other reliefs which this Hon'ble Court may deem fit and proper in the interest of justice. W.P.(C).No.22798 OF 2009 Page numbers 2. Petitioner is the plaintiff in O.S No.153 of 2007 on the file of Sub Court, Pathanamthitta. Suit is for recovery of money based on a dishonoured cheque. Suit was instituted against the first respondent alone as a sole defendant. Subsequently, it is submitted, the respondents 2 to 7 got themselves impleaded in the suit as codefendants. With the suit, the plaintiff had moved an application for interim attachment of a property purportedly belonging to the first defendant under Order 38 Rule 5 of Code of Civil Procedure. The additional defendants who got themselves impleaded as defendants 2 to 7 moved a claim petition contending that long before the attachment under the registered sale deed, the title, right and possession over the property have been transferred in their favour and as such, the attachment order has to be lifted. An enquiry over the claim petition was made and it was upheld with the result of lifting the attachment. Petitioner / W.P.(C).No.22798 OF 2009 Page numbers plaintiff, it is submitted, has preferred two appeals, one against the order lifting the attachment, and, other, allowing the claim petition. Those appeals are still pending before this court. Meanwhile, petitioner / plaintiff moved an amendment application so as to incorporate allegations in the plaint that the sale deed executed in favour of the additional defendants 2 to 7 by the first defendant is a fraudulent transfer and so much so, he is entitled to an additional relief of setting aside that sale deed vitiated as a fraudulent transfer. Amendment application was objected to by the defendants. The learned Sub Judge after hearing both sides dismissed the amendment application vide Ext.P7 order. Propriety and correctness of Ext.P7 order is challenged in this writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. W.P.(C).No.22798 OF 2009 Page numbers 4. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P7 order, I find no notice to the respondents is necessary, and it is dispensed with. After hearing the learned counsel for the petitioner at length, I find it not proper to express any opinion on the controversy raised with reference to the suit pending for adjudication and also the two appeals preferred by the petitioner, which are awaiting its disposal after hearing both the parties. All the same, it has to be pointed out that when a claim petition is filed resisting the attachment if the party who obtained such an attachment has got a case that the transfer of property under which the claim raised is vitiated as a fraudulent transfer even without filing a separate suit in a representative capacity under Section 53 of the Transfer of Property Act, he can defend the order of attachment by showing W.P.(C).No.22798 OF 2009 Page numbers that the claim has been raised under a fraudulent transfer. In “Ithakku Abraham v Kesavan Damodaran” in (1987 (2) KLT 551) it has been held, “ a plea based on Section 53 of the Transfer of Property Act can be raised by way of defence and, if raised as a defence, there is no need to defend the suit in representative capacity on behalf of all the creditors of the judgment debtor ” Such being the position of law, to resist the claim of a third party as against the attachment ordered by the court, it may not be necessary for the plaintiff to seek for an amendment of the plaint to have an additional relief for setting aside the sale deed in favour of the claimant as vitiated by a fraudulent transfer. On the facts presented, I find no reason to interfere with Ext.P7 order, because the amendment proposed is likely to change the character of the suit which was instituted only for recovery of money. No interference with Ext.P7 order invoking the visitorial jurisdiction of this W.P.(C).No.22798 OF 2009 Page numbers court under Article 227 of the Constitution of India is called for. Subject to the above observations, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv