IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 RFA.No. 467 of 2004(E) -------------------------------- AGAINST THE ORDER DATED 20/03/2003 IN IA. 4902 /1999 IN OS.362/1999 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/PETITIONER/PLAINTIFF -------------------------------------------------- C.SIVANKUTTY,ANAD BHAVAN, ST.GEORGE LANE,MEDICAL COLLEGE P.O., TRIVANDRUM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): COUNTER PETITIONER/DEFENDANT --------------------------------------------------------------------------------- J.INDIRA,VIPIN HOUSE, T.C.NO.1/984, MEDICAL COLLEGE P.O., TRIVANDRUM. ADV. SRI.BLAZE K.JOSE THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.No.467 of 2004-E = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of November, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.The holder of a decree for recovery of money is the appellant. He challenges the order by which the court below has allowed a claim petition in relation to a property that was covered by an attachment before judgment. 2.The judgment debtor remained ex parte in the suit, though he had filed a written statement. He has, going by the materials, wife and two children. On 10.6.1983, the parents of the wife made a settlement in favour of the judgment debtor and his wife at the time of their marriage. They hold one half share each in the property covered by that transfer. Long RFA467/2004 -: 2 :- thereafter, on 18.3.1998, the judgment debtor borrowed amounts from the decree holder which, ultimately, led to the decree. After the borrowal, on 4.11.1998, the husband and wife joined in transferring the property to their children who were minors then. The suit was laid on 8.9.1999 and an order of attachment before judgment was also obtained contemporaneous with that. On 17.11.1999, the wife of the judgment debtor, on behalf of the minor children, filed the claim petition in relation to the property under attachment. That was contested by the decree holder by contending that the transfer made by the couple in favour of their minor children on 4.11.1998 was a transfer in fraud of creditors and cannot stand in the way of the enforcement of the attachment made in the suit. We see such specific pleadings having been raised in the objections of the decree holder to the claim petition. However, the court below proceeded as if there is no such objection to the alleged fraudulent nature of the transfer. It, RFA467/2004 -: 3 :- however, rightly noticed that even under the document of 10.6.1983, the defendant's wife had one half share and therefore, the attachment cannot have any impact on such share and the transfer made by her in favour of children on 4.11.1998 cannot be disturbed. 3.In the aforesaid context, the question is whether one half share of the property covered by the transfer on 4.11.1998 alone could have been considered as belonging to the judgment debtor. If that were so, the only question that would then remain is as to whether the transfer in so far as it was made by him in relation to his one half share is a transfer in fraud of creditors. However, the court below failed to go into that aspect of the matter. Having regard to the relevant provisions contained in Order 38 Rule 11A and Order 38 Rule 8 read with Order 21 Rule 58 of the CPC, the court below was to adjudicate the claim as if it were the suit. RFA467/2004 -: 4 :- 4.For the aforesaid reasons, we set aside the impugned order and remit the case for re- consideration directing that the claim and the objections thereto would be taken up and tried in terms of law as noticed above as regards one half right that the judgment debtor had in the property under attachment following the document dated 10.6.1983. It is clarified that one half right of wife in terms of that document which has already been transferred in favour of the minor children on 4.11.1998 would not be touched in enforcement of the decree in question, however that, if it becomes necessary to have a partition to the extent of one half right, in the property in enforcement of the decree, this judgment would not stand in the way of that being done. Since the suit stands decreed as ex parte more than seven years ago, there is no reason why the court below should not expedite the disposal of the matter being remitted hereby. We also clarify that this judgment will not stand in the way of RFA467/2004 -: 5 :- the wife of the judgment debtor or the children saving the entire property from further distress proceedings in execution by paying off the decree holder in satisfaction of the decree. We further clarify that we have not expressed anything on the fraudulent or otherwise nature of the impugned transaction since the court below has to decide that issue at trial. No costs. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sha/0412