IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 Ex.FA.No. 7 of 2008() --------------------- AGAINST THE ORDER DATED 21/11/2007 IN EA 343/2007 IN EP 112/06. IN OS.5117/2003 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT/PETITIONER ---------------------------------------- RENJITHLAL, S/O.LAL, EARASSERIL HOUSE, ELAMKULAM MURIYIL, KANAYANNOOR TALUK, ERNAKULAM. BY ADV. SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM RESPONDENT(S): COUNTER PETITIONERS ---------------------------------- 1. P.O.THOMAS, PROPRIETOR AND CEO, M/S.CHENNAI CABLE CORPORATION, NO.72, HALLS ROAD, IIND FLOOR, EG.MORE, CHENNAI-8. 2. E.M.LAL, MANAGING PARTNER, CABLE AND CONDUCTORS, NO.26/2461, ERASSERIL, KAPPITHAN HOUSE, BEHIND MATTAMMEL TEMPLE, THEVARA, KOCHI. ADV. SRI.R.PARTHASARATHY FOR R1 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH & K.T.SANKARAN, JJ. ----------------------------------------- Ex.F.A.No.7 of 2008 ----------------------------------------- Dated this the 6th day of November, 2008 JUDGMENT K.T.Sankaran,J. The appeal arises out of the order passed by the court below dismissing the application filed by the appellant under Rule 58 of Order XXI of the Code of Civil Procedure. 2. The suit was filed by the first respondent against the second respondent for realisation of money on 8-10-2003 in the City Civil Court, Madras. The suit was decreed on 24-3-2006. The decree was sent for execution to the Additional Sub Court, Alappuzha. The execution petition was filed on 12-10-2006. Attachment of the property, which is the subject matter of the petition under Order XXI Rule 58, was made on 7-12-2006. 3. The claim of the appellant is that on 20-6-2005 the second respondent executed a settlement deed in his favour and that the attachment having been effected subsequent to the settlement deed, the appellant is entitled to get the attachment raised. The appellant contended that he is a bona fide transferee and that at the time when the decree was passed the execution petition was filed and the attachment was effected, the second respondent had no title or possession to the property. Ex.F.A.No.7 of 2008 : 2 : 4. The contention raised by the first respondent decree holder is that the appellant is the son of the second respondent and that the document was executed to defraud the creditors. There was no consideration for the transaction. The attempt of the second respondent was to defeat and delay the execution proceedings initiated against him. Though the attachment was effected on 7-12-2006, the claim petition was filed only on 27-10-2007. 5. The court below held that the appellant has not proved that he is a bona fide transferee of the property. The document in his favour was not produced. No evidence was also adduced before the court below to establish that he has obtained title to the property prior to the attachment. 6. Before this court the appellant has produced the title deed in his favour by way of additional evidence. The document in favour of the appellant is a settlement deed (gift deed) executed by the second respondent in his favour. No consideration was paid by the appellant to the second respondent. It is not a bona fide purchase. The finding of the court below that the appellant and the second respondent entered into the transaction only to defeat and delay the execution proceedings and to defraud creditors appears to be correct. Learned counsel for the appellant submitted that the first respondent having Ex.F.A.No.7 of 2008 : 3 : not adduced any evidence to establish that the transaction in question is a fraudulent transfer, the court below was not justified in arriving at a conclusion that the transfer is not a bona fide one. Now the document having been produced before this court, it is clear that the document under which the appellant claims title is a gift deed. The appellant has not paid any consideration to the second respondent. The second respondent is the father of the appellant. No acceptable circumstances are made out as to why the gift was made in favour of the appellant. Since the appellant has failed to produce even the document of title under which he claims title and possession before the court below, there was no question of establishing that the transaction amounts to a fraudulent transfer. It cannot be held that the first respondent has failed to discharge the burden of proof cast on him. 7. The delayed production of the gift deed before this court under Order 41 Rule 27 cannot be made a basis for setting aside a well considered order passed by the court below. The facts and circumstances are tell-tale. The appellant has not established that he is in possession of the property or that the second respondent has lost possession. No materials are produced to show that mutation was effected in the name of the appellant or that the appellant has possessed and enjoyed the property in question. Moreover, there is Ex.F.A.No.7 of 2008 : 4 : no monetary consideration for the transaction. In these circumstances, we are not inclined to interfere with the well considered order passed by the court below. The Execution First Appeal lacks merits and it is accordingly dismissed. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (K.T.SANKARAN, JUDGE) ahg. KURIAN JOSEPH & K.T.SANKARAN, JJ. --------------------------- Ex.F.A.No.7 of 2008 ---------------------------- JUDGMENT 6th November 2008