IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 RFA.No. 195 of 2008() --------------------- AGAINST THE ORDER DATED 31/01/2007 IN IA.1035/03 IN OS.400/2002 of ADDL.SUB COURT,PARAVUR .................... APPELLANT:PETITIONER: ---------------------------------------- ANIE JOSEPH, W/O.PHILIP JOSEPH, VALIYAVEETIL, ALUVA KARA, ALUVA WEST VILLAGE. BY ADV. SRI.DINESH R.SHENOY SRI.V.V.UNNIKRISHNAN RESPONDENT: RESPONDENT: ---------------------------------------------- POULOSE, S/O.LONAN, MENACHERLY VEETTIL, KOTTAPPURAM KARA, ALANGAD VILLAGE. ADV. SRI.K.JAYAKUMAR FOR R1 SRI.P.B.KRISHNAN FOR R1 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2008 ALONG WITH RFA NO. 196 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ======================================== R.F.A.Nos. 195 & 196 OF 2008 ============================= Dated this the 20th day of August, 2008. J U D G M E N T P.R.RAMAN, J. R.F.A.195/2008 arises out of an order dated 31.1.2007 in I.A.1035/2003 in O.S.No.400/2002 on the file of Additional Sub Court, North Paravoor. The appellant was the petitioner in the said I.A. under Order 21 Rule 58, seeking to lift the attachment clamped over the plaint schedule property. The appellant in R.F.A.196/2008, arises out of an order in I.A.2719/2003 in O.S.No.400/2002 on the file of the same court. This application was also filed seeking to lift the attachment over the plaint schedule property. R.F.A.No.195/2008 is filed by Anni Joseph, the mother of the defendant whereas R.F.A.No.196/2008 is filed by Charlie, the brother of the defendant. 2. Two items of the properties belonging to the defendant of which one item was purchased by the mother out of which a portion of the property was sold subsequently to Charlie Jose, another son of the appellant in R.F.A.No.195/2008 and brother of the defendant. The contention advanced to sustain the claim petitions were similar. Hence, we dispose of this appeals by this R.F.A.Nos. 195 & 196 OF 2008 2 common judgment. 3. Evidently, there were two items of the properties belonging to the defendant which were under attachment before judgment, during trial stage. Eventually, a decree was passed in favour of the plaintiff and the plaintiff, the decree holder sought to execute the decree by bringing the property for sale. Before passing the decree, present applications were filed. The court below by two separate orders, dismissed the same holding that the transaction evidenced by Ext.A1 produced in both the cases, namely, certified copy of the sale deed No. 1986/2002 dated 7.6.2002 and 4152/2002 dated 19.11.2002, have been affected with a view to defeat the creditors of the defendant in O.S.400/2002, who is also the son of Annie and brother of Charlie. Aggrieved thereby, these two appeals are preferred. Since, two items of properties are involved, evidence was taken separately and order passed. 4. In I.A.1035/2003, the petitioner got examined as PW1 and two documents were marked as Exts.A1 and A2 and on the side of the respondent, he was examined as RW1. Like wise, in the other I.A., document Ext.A1 sale deed dated 19.11.2002 was R.F.A.Nos. 195 & 196 OF 2008 3 marked. On the side of the respondent, RW1 was examined. The court below analysing the entire facts on record, came to the following conclusion that the transaction evidenced by the documents, based on the claim which is raised, is clouded with suspicion. The property actually belong to the defendant in the suit. The transfer was affected by the father, as the power of attorney holder, in favour of the mother of the defendant and mother in turn executed another deed in favour of another son who is the brother of the defendant. Even though, it was contented that the defendant himself was available at the time of registration of the sale deed, still the defendant did not come up to execute the sale deed or did the registration, rather, the father as the power of attorney holder, executed the deed. Hence the transfer lacks bona fide and on the other hand is fraudulent. Challenging the above finding, the learned counsel Sri.Shenoy submitted that this sale deed in his favour was affected prior to the institution of the suit itself and for that matter not even a demand was raised by the plaintiff. According to him, as per the first part of Section 53 of the Transfer of Property Act, unless the transfer is shown to defraud the creditors is cannot be R.F.A.Nos. 195 & 196 OF 2008 4 invalidated. Therefore, whatever said, it is not shown that the claimant was aware of a previous debt against the transferor/defendant, so the transaction will not be hit by Section 53. Learned senior counsel Sri. Balakrishna Iyer on the other hand would contend that it is not correct to say that the demand was not raised. Notice issued raising the demand was returned and the close relationship of the parties would clearly show that the denial of the absence of knowledge of a debt incurred by the defendant is not bona fide or true. After arguing the matter by both sides and considering the close relationship of the parties, namely, the defendant and the claimant/appellant, before us, and taking note of the fact that the decree though was an ex-parte decree, it has become final in the absence of any challenge, a suggestion was made to see whether the matter could be settled and give a quietus to the dispute, since in case we find that some more aspect of the matter required to be considered, the only option available will be only to remand the matter for fresh consideration which will only delay the matter further. After giving thought over the same, the learned counsel on both sides took time for consultation and thereafter, subsequently, when the R.F.A.Nos. 195 & 196 OF 2008 5 matter was taken up for consideration, it was agreed that an amount of Rs.2,80,000/- will be paid by the appellants together in discharge of the decree debt in instalments so that the attachment over the property will stand lifted and the decree recorded as satisfied. Accordingly, on the agreement between the parties as above, we dispose of the appeals as follows: Since, only a portion of one of the items was transferred by Annie Joseph to Charlie, her another son, the substantial portion of the property which originally belonging to the defendant is still belong to the mother in R.F.A.No.195/2008. In such circumstances, it is submitted that the appellant in R.F.A.No.195/2008 will discharge the entire decree debt for and on behalf of the other appellants, by paying an amount of Rs. 2,80,000/- in discharge of the decree debt in O.S.No.400/2002 in full satisfaction. Accordingly, we direct the payment of an amount of Rs.2,80,000/- to be paid in four instalments as follows: Rs. One Lakh shall be paid on or before 10.9.2008 and Rs.50,000/- thereafter, on or before on 10.10.2008, a further sum of Rs.50,000/- on or before 11.11.2008 and the balance R.F.A.Nos. 195 & 196 OF 2008 6 Rs.80,000/- on or before 10.12.2008. The above amount shall be paid on or before the due dates without committing default, whereupon the decree debt will get satisfied and the attachment will stand lifted and there shall not be any further execution of the decree. Since the appellants, a third party, discharging the debt incurred by the judgment debtor in full satisfaction of the decree as above, the appellants will be entitled to the benefits under the decree against the defendant. 5. In case of failure to comply with the above conditions, the appeals will stand dismissed. In the statutory discharge of the liability as aforesaid, it will be open to the appellants to report compliance by filing an application before the court below, whereupon, the court below will communicate the order of lifting of attachment to the Sub Registrar's Office. The appeals are disposed of as above. P.R.RAMAN, JUDGE T.R.RAMACHANDRAN NAIR, JUDGE bkn/-