IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 Ex.FA.No. 32 of 2005() ---------------------- AGAINST THE ORDER IN EP 74 1995 IN OS.16/1995 of SUB COURT, OTTAPPALAM .................... APPELLANT/1ST RESPONDENT/DECREE HOLDER: ----------------------------------------------------------- SHAHUL HAMEED, S/O. MUHAMMED, RESIDING AT PULAKKAL, ONGALLUR, KALLADIPATTA (P.O) PATTAMBI (VIA), OTTAPPALAM TALUK,PALAKKAD DIST. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN RESPONDENT(S): CLAIM PETITIONER & 2ND RESPONDENT/JUDGMENT DEBTOR: ----------------------------------------------------------------- 1. KRISHNAN KUTTY, S/O. KALLIDUMBIL NARAYANAN, VADANAM KURUSSI AMSOM AND DESOM,, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. KRISHNAN @ CHANDRAN, S/O. THACHANAMKOTTIL SANKUNNI, VADANAM KURUSSI AMSOM AND DESOM, OTTAPALAM TALUK,PALAKKAD DIST. ADV. SRI.K.RAMACHANDRAN FOR R1 SMT.R.MEERA FOR R1 SRI.E.R.VENKATESWARAN FOR R2 SRI.R.SREEHARI FOR R2 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = Ex.F.A. NO. 32 OF 2005 = = = = = = = = = = = = = = = Dated this the 6th day of October, 2009. J U D G M E N T This appeal is preferred against the order of the Subordinate Judge, Ottappalam in E.A.559/95 in E.P.74/95 in O.S.16/95. The applicant before the court below is the purchaser of the property and he has moved the claim application to establish that he is the owner in possession of the property and therefore the said property cannot be sold in execution of the decree. As per the provisions under the Code of Civil Procedure as amended especially under Or.21 Rule 58(2) the courts are competent to consider the question regarding the same and the parties are precluded from filing separate suits. Order 21 Rule 58 is just like a provision under Order 21 Rule 101 where all disputes with respect to title also can be considered by the Court which arises in the case. Now the following facts are very relevant for the proper determination of the case. Ex.F.A. NO. 32 OF 2005 -:2:- 2. The claimant gets right over the property by virtue of an assignment deed executed by the judgment debtor in O.S.16/95 dated 9.11.1994. The plaintiff/decree holder institutes a suit before the Court for realisation of the money with a prayer to attach the property and the Court attaches the property on 13.1.1995. It has to be remembered that on the date of the attachment of the property it has already been sold in favour of the claimant as per an assignment deed dated 9.11.1994. It is a settled position of law that the attachment before judgment does not confer any title, charge, lien or priority in the property in favour of the person attaching the property. So the mode of challenge in these types of transfers may be confined to one as a fraudulent transfer as contemplated u/s 53 of the Transfer property Act or challenging the same as a sham transaction. So far as the present case is concerned the attempt of the decree holder in the case is to establish that it is a fraudulent transfer. It is a settled position of law that fraud cannot be inferred from conjectures and surmises. It Ex.F.A. NO. 32 OF 2005 -:3:- can be remembered that O.S.16/95 is instituted for realisation of some amount due under an agreement between the plaintiff and the defendant in the suit. It is stated that there is an undertaking in that agreement that the defendant will not transfer the property. But that by itself cannot deprive the right of a person who had purchased the property parting with valuable consideration and without notice of the agreement. The agreement relied upon is not a registered one so as to bring into the question of a public notice. It is a private agreement between two parties and a person who purchased the property will be made to believe that there is no such liability on the property. The mode of finding out the encumbrance on the property is by applying for an encumbrance certificate and when the document is not registered, one would not be able to find these types of undertakings or other things from the encumbrance certificate. Just because a property has been purchased or just because anything has been given by somebody one cannot affix the notice on the purchaser regarding the said Ex.F.A. NO. 32 OF 2005 -:4:- terms and conditions. When it is so a fraud cannot be inferred. It has to be remembered that the assignment deed is dated 11.9.94 and the suit is instituted only in the year 12.1.1995. A perusal of the discussions made by the learned Subordinate Judge would reveal that after the purchase of the property the claimant had paid tax and obtained Exts.A2 and A3 receipts. So it is proved that the claimant has purchased the property by virtue of the document and acting upon the basis of the same he did the mutation and had started paying revenue for the property. Except the mere ipsi dexit of the decree holder there is nothing to show about the fraudulent nature. Who is colluding with whom is still a misery in this case for the reason that the defendant in the suit had chosen to remain exparte thereby paving the way for the plaintiff to get a decree. There is absolutely no charge decree as well. So in the light of all these factors and in the light of the specific provision under O.38 Rule 10 of the Code of Civil Procedure which specifically states that it will not bar the right of a party who is in possession of the Ex.F.A. NO. 32 OF 2005 -:5:- property prior to the date of attachment, it is to be held that the claim petition has to succeed and that the order passed by the learned Subordinate Judge does not call for any interference and therefore the appeal fails and the same is dismissed under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/-