IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 Ex.FA.No. 8 of 2011() --------------------- ORDER DATED 19-02-2011 IN EA NO.184/2009 IN EP NO.2/2008 IN AP.169/1999 of DISTRICT COURT, KASARAGOD .................... APPELLANT/IST RESPONDENT -------------------------------------------- M/S. MAHARASHTRA APEX CORPORATION LTD, KASARAGOD, REPRESENTED BY ITS ERNAKULAM BRANCH MANAGER, SRI.CHRISTY BOY, AGED 56 YEARS. BY ADV. SRI.S.R.DAYANANDA PRABHU RESPONDENTS/CLAIM PETITIONER/RESPONDENTS 2 TO 4 -------------------------------------------------- 1. VINOD MATHEW, AGED 43 YEARS, S/O.C.T.MATHEW, AGRICULTURIST, R/AT KALICHANADUKKAM, P.O.KALICHANADUKKAM, THAYANNUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. P.JOHN BABU, AGED 49 YEARS, S/O.P.T.JOHN KALICHANADUKKAM, NILESHWARAM, HOSDURG TALUK, KASARAGOD DISTRICT (JD NO.2). 3. M.V.JAMES, AGED 45 YEARS, S/O.VARGHESE, KADUMENI HOUSE, HOSDURG TALUK, KASARAGOD DISTRICT (JD NO.2) 4. WILSON JOHN, AGED 42 YEARS, S/O.P.T.JOHN PARAPALIL HOUSE, KALICHANADUKKAM, NILESHWARAM, HOSDURG TALUK, KASARAGOD DISTRICT (JD NO.3) THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN & S.S. SATHEESACHANDRAN, JJ. ------------------------------------------ Ex.F.A No. 8 OF 2011 ------------------------------------------ Dated this the 26th day of May, 2011. JUDGMENT Thottathil B. Radhakrishnan, J. The decree holder on the basis of arbitration award is the appellant. The award was put in execution before the competent civil court. Admittedly, the property that was brought to sale was transferred by the judgment debtor to a third party before the award. Going by the evidence of RW1, the officer of the decree holder, there was no charge created by transaction between the parties in favour of the decree holder. The attachment in execution was much after the transfer was effected between the judgment debtor and the third party, who filed the claim petition from which this appeal arises. 2. The learned counsel for the appellant argued that the transfer by the judgment debtor to the third party was in fraud of creditors. This plea is sought to be supported only by the testimony of the officer of the decree holder. ExFA No.8/2011 -2- That apart, the said plea, which is only a plea in the objection to the claim petition, does not by itself provide room to invalidate any such sale and proceed against the properties as if it belongs to the vendor. The transfer cannot be impeached as one in fraud of creditors by merely filing an objection to that effect in answer to a claim petition. Even on evidence, the court below was correct in taking the view that the transaction referred to in the impugned order justifies the transfer as a bonafide one in as much as it was taken by a bonafide purchaser. The findings this regard in paragraphs 11 and 12 of the impugned order calls for no interference. In the result this appeal fails and the same is dismissed in limine. Sd/- THOTTATHIL B. RADHAKRISHNAN, JUDGE Sd/- S.S. SATHEESACHANDRAN, JUDGE AMG True copy P.A to Judge