IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Ex.FA.No. 102 of 2009(G) ----------------------- AGAINST THE ORDER DATED 17/11/2008 IN EA.37/2007 IN EP.601/2004 IN OS.347/1996 of SUB COURT, MAVELIKKARA .................... APPELLANT/CLAIM PETITIONER ---------------------------------------------- AJAYAKUMAR, S/O.BALAKRISHNAN KURUP, AGED 54 YEARS, POTTAKKANAYATHU VEEDU, KAYAMKULAM VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI.P.B.SURESH KUMAR SRI.K.P.SUJESH KUMAR RESPONDENT(S): --------------- 1. M.P.CHANDRAN PILLAI, S/O.PARAMESWARAN PILLAI, MATTATHU VADAKKATHIL, PATHIYOOR KALA, KEERIKKAD P.O., ALAPPUZHA DISTRICT. 2. RAJASEKHARAN, F.F.2, HOUSE NO. 201, VRINDAVAN, HOUSING COLONY, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE FOR R1 SRI.M.GOPIKRISHNAN NAMBIAR FOR R1 SRI.P.G.RAJAGOPALAN FOR R1 SRI.GRASHIOUS KURIAKOSE FOR R2 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16/11/2009, THE COURT ON 04/12/2009 DELIVERED THE FOLLOWING: ORDER IN I.A. 2124 OF 2009 IN EX.F.A. NO: 102 OF 2009 DISMISSED. SD/- K.M.JOSEPH (JUDGE) SD/- M.L.JOSEPH FRANCIS (JUDGE) 4.12.2009 K. M. JOSEPH & JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - EX.F.A. NO: 102 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th Day of December, 2009. JUDGMENT Joseph Francis J., This appeal is filed by the claim petitioner in E.A. No: 37 of 2007 in E.P. No: 601 of 2004 in O.S.No: 347 of 1996 on the file of Sub Court, Mavelikkara. Respondents 1 and 2 herein are the first respondent/ decree holder and second respondent/ Judgment debtor in that petition which was filed under order XXI Rule 58 of Code of Civil Procedure for adjudicating the claim of the petitioner over the plaint schedule property and to lift the attachment over that property. 2. The facts of the case according to the appellant are briefly as follows: The property scheduled in the application referred belonged to the second respondent, who is the brother of the EX.F.A. NO: 102 OF 2009 :2: appellant and the appellant was in possession of the property. On 20.8.1992, second respondent executed an agreement of sale in respect of the said property in favour of the appellant. Since the second respondent did not execute the sale deed in respect of the property as per the terms of the agreement, appellant instituted O.S. No : 538/1996 before the Munsiff's Court, Kayamkulam and obtained a decree for specific performance of the agreement for sale. 3. While so, the appellant came to know that the property referred to above was attached before judgment in O.S. No:347/1996 instituted before the Sub Court, Mavelikkara by the first respondent against the second respondent: that the said suit was decreed permitting the first respondent to recover Rs.4,76,032/- from the second respondent and that the first respondent has filed E.P. No.601/2004 in the said court to execute the said decree by proceeding against the said property. The appellant filed E.A. No : 37/2007 in the said Execution EX.F.A. NO: 102 OF 2009 :3: Petition seeking orders to release the said property from attachment. 4. The first respondent contested the claim petition contending inter-alia that the second respondent is the brother of the appellant, that the decree relied on by the appellant is a decree obtained by collusion and that the claim petition is filed to defeat the execution of the decree obtained by him against the second respondent. 5. Appellant was examined as PW1 and Exhibits A1 and A2 were marked. The first respondent was examined as DW1 and Exhibit B1 was marked. 6. The learned Sub Judge on considering the matter dismissed that petition on finding that the petitioner has not succeeded in establishing his independent title and possession over the petition schedule property. Against that order the claim petitioner filed this appeal. 7. We heard the learned counsel for the appellant and the EX.F.A. NO: 102 OF 2009 :4: learned senior counsel for the contesting first respondent. The learned senior counsel for the first respondent invited our attention to the following facts. 8. Admittedly the petition schedule property belongs to judgment debtor. On 5.7.1992, the judgment debtor borrowed an amount of Rs.3,50,000/- from the decree holder. On 29.6.1996, the decree holder filed O.S. No: 347 of 1996 before the Sub Court, Kollam, against judgment debtor for the realisation of Rs.4,76,032/- together with interest thereon. Along with that suit the decree holder filed this I.A. No: 1991 of 1996 for attachment before judgment of the petition schedule property. On 22.8.1996, the petition schedule property was attached. Immediately, thereafter on 22.11.1996, the claim petitioner filed O.S. No: 538 of 1996 before the Munsiff's Court, Kayamkulam for specific performance of an agreement of sale dated 20.8.1992 alleged to have been executed by the judgment debtor in favour of his brother, the EX.F.A. NO: 102 OF 2009 :5: claim petitioner. It is alleged in the suit that the total sale consideration was for Rs.49,500/- out of which an amount of Rs.45,000/- was paid as advance. It is further alleged in that suit that the time stipulated for payment of balance of sale consideration and execution of sale deed was three years. The defendant (judgment debtor) therein remained exparte and exparte decree was passed on 24.2.97. 9. The learned senior counsel for the contesting first respondent pointed out that though the suit filed by the claim petitioner was decreed exparte on 24.2.1997, till the filing of the claim petition, the decree holder therein (claim petitioner) has not filed any petition for execution of the decree and that from the above mentioned facts it is clear that the agreement for sale dated 20.8.1992 was fraudulently created by the judgment debtor to defeat the creditors. On perusing the order under challenge it is seen that the learned sub judge has found that non - production of original agreement for sale arises serious EX.F.A. NO: 102 OF 2009 :6: doubts regarding the suspicion about the genuineness of the case of the claim petitioner. 10. The learned counsel for the appellant submitted that the appellant is prepared to produce that original agreement for sale and the appellant was under the impression that since he had produced the copy of the decree in O.S. No: 538 of 1996 of Munsiff Court, Kayamkulam in which the genuiness of the agreement for sale was considered, the production of agreement for sale was unnecessary. He submits that there is no specific finding of collusion. The learned counsel for the appellant requested for a remand of the case for the purpose of production of original agreement for sale. 11. We are not inclined to accede to the said request. The alleged agreement was entered on 20.8.1992. Allegedly, the price was Rs.49,400/= of which the appellant allegedly paid Rs.45,000/= as advance. They are residing in the same address. The Suit is filed only on 22.11.1996. It was decreed ex EX.F.A. NO: 102 OF 2009 :7: parte. The appellant was surety for the second respondent in the Criminal Case filed by the plaintiff. This was in 1993. The appellant has not chosen to file E.P. against the second respondent till date; he deposes. He has not deposited the balance amount, he deposes. We would think that the question was whether there was collusion. In the circumstances, we would think that there is collusion. We find no merit in the Appeal and it is dismissed. The parties are directed to bear their respective costs. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/