IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 RFA.(Misc.) No. 110 of 2007(E) --------------------- AGAINST THE ORDER DATED 29/07/2006 IN IA.525/04 IN IA.525/02 IN OS.49/2002 of SUB COURT, QUILANDY .................... APPELLANT/CLAIM PETITIONER: ----------------------------------------------- M. SUDHAKARAN, S/O.URAPPARAN, RESIDING AT MANGAT HOUSE, KOTTOLI AMSOM, DESOM, KOZHIKODE TALUK AND DISTRICT. BY ADV. SRI.PHILIP ANTONY CHACKO SRI.M.R.MOUNEESH RESPONDENT(S): PLAINTIFF AND DEFENDANTS: ---------------------------------------- 1. MANGATT PRABHAKARAN, S/O.CHOYI, VALAYANAD AMSOM, DESOM, KOZHIKODE TALUK AND DISTRICT. 2. T.C. PADMANABHAN, S/O.GOPALANKUTTY NAIR, RESIDING AT PANOLI HOUSE, KUTHIRAVATTAM AMSOM DESOM, KOZHKODE TALUK AND DISTRICT. 3. VALAYAD KUTAPPAN, S/O. KELU ADVOCATE CLERK, THALAKULATHUR AMSOM, DESOM, KOZHIKODE TALUK AND (DT.) BY ADV. SRI.T.SETHUMADHAVAN FOR R.1 SRI.PUSHPARAJAN KODOTH FOR R.1 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2009, THE COURT ON 09/12/2009 DELIVERED THE FOLLOWING: ORDER ON I.A. NO: 757/ 2007 IN R.F.A (MIS) NO: 110 / 2007 DISMISSED. SD/- K.M.JOSEPH (JUDGE) SD/- M.L.JOSEPH FRANCIS (JUDGE) 9.12.2009 K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A.No. 110 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of November, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by the petitioner in I.A. No.525 of 2004 in I.A.No. 525 of 2002 in O.S.No. 49 of 2002 on the file of the Sub Court, Quilandy. Respondents 1 to 3 herein are respondents 1 to 3 in that petition, which was filed under Order 38 Rule 8 and Order 21 Rule 58 C.P.C. 2. The case of the appellant/petitioner in brief is as follows. The petition schedule property, along with other items, originally belonged to one Gopalankutty Nair and others, who partitioned the property as per final decree in O.S.No. 341 of 1968 of the Munsiff Court-II, Kozhikode. The above said Gopalankutty Nair took delivery as per E.P.No.163 of 1971 and was in exclusive possession of the R.F.A.No. 110 of 2007 2 property. On his death, the rights devolved on his legal heirs. The second respondent is his son, who had 1/6 share in the property. 3. The appellant purchased his share as per assignment deed No.743/02 dt. 23.3.2002. Subsequently, the appellant came to know that the property has been attached in I.A.No. 525 of 2004 on the allegation that the third respondent had mortgaged 41.5 cents of property in favour of the first respondent for a loan of Rs.4 Lakhs on 12.2.2001 and that the defendants executed a promissory note in favour of the first respondent/plaintiff. The appellant apprehends that the respondents have colluded together for defrauding him after the second respondent sold the property in his favour for valuable consideration. The promissory note is created for the purpose of defeating his rights. The appellant is a bonafide purchaser for consideration and he was not aware of any transaction involving the second respondent/first defendant prior R.F.A.No. 110 of 2007 3 to the purchase till he came to know of the attachment from the Sub Court, Kozhikode. 4. The petition schedule property was attached in another case filed as O.S.No. 218 of 2002 before the Sub Court, Kozhikode. The appellant was not aware of the attachment and he knew about the attachment only when it was effected in the above proceedings. The allegation that the property described in the schedule to plaint is insufficient for discharging the plaint claim is incorrect. Even assuming that the value of the property is not sufficient, the petitioner and his properties are not liable as he is a bonafide purchaser for value. So, the petitioner prayed for an order removing the attachment over the petition schedule property with costs of the proceedings. 5. The first respondent, who is the plaintiff in the suit, filed counter statement denying the averments in the petition. He submitted that the petitioner had purchased right over the first R.F.A.No. 110 of 2007 4 defendant/2nd respondent as per registered document No. 743/ 02. The 2nd respondent had borrowed a sum of Rs.4 lakhs from the first respondent on 20.2.2004. The said aspect has been admitted by the defendants in the suit. But in order to defeat the rights of the respondent, the 2nd respondent colluding with the petitioner, created a document and got registered. The said document is a sham one, as per which no consideration was passed. It has not been acted upon. The possession of the property has never been handed over to the claimant. Before and after the said assignment deed, it is the 2nd respondent who is in possession of the property and he and his family are residing in the house situated therein. 6. The claim petitioner has filed the claim petition before the Sub Court, Kozhikode in O.S. 218/02. It was on 7.1.2003 the suit in question was decreed and the averment in the petition that it was only on 19.10.2003, the petitioner came to know of the attachment is incorrect. The petition is liable to dismissed because R.F.A.No. 110 of 2007 5 of the above said delay. It is only for protracting the proceedings before the court, the 2nd respondent colluding with the claimant has filed the claim petition. 7. In the Sub Court, for the purpose of enquiry PWs. 1 to 3 and RW1 were examined and Exts.A1 to A13 and B1 were marked. The learned Sub Judge, on considering the matter, dismissed that petition on finding that the claimant failed to establish his right over the petition schedule property. Against that order the petitioner filed this appeal. 8. Heard the learned counsel for the appellant and the learned counsel for the first respondent. 9. 1/6th share of the first defendant in O.S.No. 49 of 2002 on the file of the Sub Court, Quilandy over the petition schedule property was attached as per order in I.A.No. 525 of 2002 dt.9.8.2002. Ext.A1 is the copy of the Sale Deed No.743/02 dt.23.3.2002 executed by the first defendant in favour of the claim R.F.A.No. 110 of 2007 6 petitioner in respect of the 1/6th right of the first defendant over that property. Therefore, it is clear that on the date of Ext.A1 Sale Deed there was no attachment of the petition schedule property as per order in I.A.No. 525 of 2002 in O.S.No. 49 of 2002. 10. O.S.No. 49 of 2002 was filed by the plaintiff for realisation of Rs.4 lakhs from defendants 1 and 2 on the basis of a promissory note executed by defendants 1 and 2 and the property having an extent of 41.5 cents belonging to the second defendant was mortgaged to the plaintiff. According to the claim petitioner, he purchased 1/6th share of the first defendant over the petition schedule property as per Ext.A1 sale deed dt. 23.3.2002 as a bonafide purchaser. PW1 deposed that he purchased 1/6th share of the first defendant over the petition schedule property for a sale consideration of Rs.40,000/- 11. The learned counsel for the appellant invited our attention to the decision of the Apex Court reported in Hamda Ammal v. R.F.A.No. 110 of 2007 7 Avadiappa Pathar and ors. ((1991) 1 SCC 715), in which it was held: Rule 5 of Order 38 CPC would not apply where the sale deed has already been executed by the defendant in favour of a third person. A transaction of sale having already taken place even prior to the institution of a suit cannot be said to have been made with the intention to obstruct or delay the execution of any decree. Rule 10 of Order 38 also makes it clear that attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit. It would, however, a different case altogether if a creditor wants to assail a pre-attachment transfer by sale under Section 53 of the Transfer of Property Act, 1882. Such suit would be decided on totally different considerations in accordance with the provisions of Section 53 of the Act. R.F.A.No. 110 of 2007 8 Neither in Section 64 CPC nor in the form prescribed for attachment there is any prohibition for submitting the sale deed for registration which has already been executed prior to an attachment. In view of Section 54 of the Transfer of Property Act after the execution of the sale deed with consideration all the ingredients of sale are fulfilled except that in case of tangible immovable property of the value of Rs. 100 and upwards it can be made only by registered instrument. Section 47 of the Registration Act makes it clear that after the registration it will relate back to the date of execution of the sale deed. The act of registration is to be performed by the registering authority. Thus the vendee gets rights which will be related back on registration from the date of the execution of the sale deed and such rights are protected under Order 38 Rule 10 CPC read together with Section 47 of the Registration Act. When the property belonged to the defendant- judgment debtors (vendors) and the sale deed had already been executed by them prior to the attachment R.F.A.No. 110 of 2007 9 before judgment and only its registration remains, then neither the attachment before judgment nor a subsequent attachment or court sale of the property would confer any title by preventing the relation back. The fact that the document of sale had not been registered until after the attachment makes no difference. Even an unregistered document can be received as evidence for purposes mentioned in the proviso to Section 49 of the Registration Act. The contention that till registration, the execution of the sale deed does not confer any rights whatsoever on the vendee cannot be accepted.” 12. In the decision reported in Ithakku Abraham v. Kesavan Damodaran (1987 (1) KLT 704), it was held: “A plea based on S.53 of the T.P. Act can be raised by way of defence, and if raised as a defence, there is no need to defend the suit in a representative capacity on behalf of all the creditors of the judgment R.F.A.No. 110 of 2007 10 debtor. Rs.58 as amended by the C.P.C. Amendment Act 104/1976 expressly provided that all question ( including questions relating to right, title and interest in the property attached) arising between the parties to a proceeding or their representatives under the rule and relevant to the adjudication of the claim or objection shall be determined by the court dealing with the claim or objection and not by a separate suit. An order made under sub-rule (3) shall have the same force and be subject to the same conditions as to appeal or otherwise as it were a decree. Since the claim is to be adjudicated on all questions relating to right, title and interest in the property attached, the claimant is in the position of a plaintiff and the decree-holder who opposes the claim is in the position of a defendant in a suit where the question relating to the right, title or interest in the property attached is to be determined. The decree holder is therefore entitled to defend the claim on grounds available to him under S.53 of the T.P. Act and such a defence need not be in a representative capacity, on behalf of all the creditors of the judgment debtor.” R.F.A.No. 110 of 2007 11 13. On perusing the lower court records in I.A. 525 of 2002 in O.S. No. 49 of 2002 on the file of the Sub Court, Quilandy it is seen that the first defendant is having an extent of 7.63 cents in Re-survey No.8/2 in Nileswaram Village apart from the petition schedule property. When this fact was brought to the notice of the counsel for both sides, the counsel for the first respondent submitted that, that property was sold by the first defendant after attachment in O.S.No. 49 of 2002 on the file of the Sub Court, Quilandy and thereafter that property has undergone several assignments and as such that property is not available for sale in execution of the decree. 14. Under Section 53 of the Transfer of Property Act the burden is on the plaintiff, who alleged fraud to prove the same and mere suspicion is not sufficient to come to the conclusion that Ext.A1 sale deed is a fraudulent one in order to defeat the claim of the plaintiff. R.F.A.No. 110 of 2007 12 15. On going through the order under challenge it is seen that the lower court relied on Ext.B1 copy of the order in I.A.No. 2083 of 2002 in O.S.No. 218 of 2002 on the file of the III Additional Sub Court, Kozhikode along with other evidence to arrive at a conclusion that Ext.A1 is a sham transaction. But we have set aside Ext.B1 order as per judgment in R.F.A. 333 of 2003 and remanded the matter to the lower court for fresh consideration. The learned counsel for the appellant submitted that the appellant came to know about the attachment in the present case when he got Ext.B1 certified copy of the order and that the appellant filed the claim petition without much delay. 16. On considering the evidence on record, we are of the view that the evidence is not sufficient to arrive at a conclusion that Ext.A1 is a bonafide sale or it is a fraudulent one. Therefore, we are of the view that in the interests of justice both sides should be given sufficient opportunity to adduce further evidence to R.F.A.No. 110 of 2007 13 substantiate their respective contentions and for that purpose the case has to be remanded back to the lower court for further evidence. 17. Accordingly this appeal is allowed. The order in I.A.No. 525 of 2004 in I.A. 525 of 2002 in O.S.No. 49 of 2002 on the file of the Sub Court, Quilandy is set aside and that petition is remanded back to that court for fresh disposal in accordance with law after giving sufficient opportunity to both sides to adduce further evidence. The parties are directed to appear before that Court on 15.1.2010. The parties are directed to suffer their respective cost in this appeal. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) tm Judge R.F.A.No. 110 of 2007 14