IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 AS.No. 804 of 1996(\) --------------------------- AGAINST THE ORDER DATED 17/08/1996 IN IA.NO.3379/94 IN IA.933/94 IN OS.122/1994 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT/PETITIONER: -------------------------------------- K.R.PARAMESWARAN, AGED 34 YEARS, S/O.K.P.RAMAN,MANAGING DIRECTOR, SPICES VALLEY ESTATES LTD., 18/1 MAHESWARI NAGAR, SAWTHEVERI, SAKLESPUR-573 134, KARNATAKA. BY ADV. SRI.P.R.VENKETESH SRI.P.R.RAJA RESPONDENT(S): --------------------------- 1.M/S. DHANALAKSHMI BANK LTD., REPRESENTED BY ITS BRANCH MANAGER, CALICUT BRANCH, CALICUT. 2.Mrs.SUSHEELA RADHAKRISHNAN, AGED 45 YEARS, D/0.K.S.NARAYANA IYER RESIDING AT 2/B.2 MUDURA AMRAT APARTMENTS, KOSHIKODE 673 032. 3CHILDREN: R.SURJITH (MINOR AGED 14 YEARS) , DO. DO. 4.R.SHILPA( (MINOR AGED 11 YEARS) , DO. DO.) (MINOR REPRESENTS 3 AND 4 BY THEIR GUARDIAN MOTHER 2nd RESPONDENT). ADV. SRI.T.V.ANANTHAN C.D.JOSE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S.NO.804/96 ORDER ON C.M.P NO.4856/96 IN A.S.NO.804/96 DISMISSED SD/- 19.5.10 M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A.TO JUDGE M.N.KRISHNAN,J. ====================== A.S.No.804 OF 1996 ====================== Dated this the 19th day of May, 2010. JUDGMENT This is an appeal preferred against the order of the Subordinate Judge's Court, Kozhikode in I.A. 3379/1994 in O.S.No.122 of 1994. Thus plaintiff bank moved a suit against the legal representatives of a deceased Advocate late N.Radhakrishnan and obtained an interim order of attachment with respect to the property in this petition. The allegation of the bank is that the said advocate did not deposit the decree amount obtained in a suit and therefore it has to be reimbursed by the members of the family from the assets of the deceased Radhakrishnan. It is the case of the claim petitioner that he had purchased the property for a valuable consideration of Rs.45,000/- by virtue of a document dated 29.11.1993 and he continues to be in occupation and possession of that property. According to him, the attachment is effected much after the A.S.No.804 OF 1996 2 assignment and therefore, the claim has to be allowed. On the contra, bank would contend it is only collusive transaction and it has not really conferred title on the claimant and further it is done with an intention to delay or defeat the creditors. Unfortunately, I find, the Subordinate Judge had not applied his mind fully to the facts of the case but on being satisfied that the difference in extend of the property etc. just dismissed the claim petition. It has to be understood that after the amendment to the Civil Procedure Code and especially under Order 21 Rule 58 the right and title relating to the property has to be adjudicated and it becomes an appealable judgment or decree. Therefore, a proper consideration of the material is necessary in this case. It can be seen that Radhakrishnan died in the month of October 1993. The assignment is effected on 29.11.1993. The document of title namely Ext.A1 would show that even prior to the death of Radhakrishnan he had borrowed a sum of Rs.15,000/- and there was an agreement between Radhakrishnan and the A.S.No.804 OF 1996 3 claimant to assign the property in favour of the claimant. So it is stated in accordance with the said wishes the legal representatives has assigned the property in favour of claimant. It has to be borne in mind that the misappropriation or non depositing of the amount was brought to the notice of the legal representatives only by issuing a lawyer notice in February 1994. The suit was filed only thereafter and, so, at the time of the alleged sale, one cannot say that the legal representatives of deceased Radhakrishnan were aware of the amount due from Radhakrishnan to the bank. Similarly, the court cannot jump to a conclusion by some discrepancies of identity of property to arrive at a decision that it is a fraudulent case. Therefore, I set aside the order passed by the learned Subordinate Judge and remit the case back to the said court for fresh consideration after affording equal opportunity to both the parties to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance A.S.No.804 OF 1996 4 with law. Essentially a finding on the point is absolutely necessary even for the implementation of the decree which is seen passed later in the case. Parties are directed to appear before the court below on 1.7.2010 and in case the bank does not appear, the claimant is directed to give notice to the bank so that matter can be proceeded in accordance with law. M.N.KRISHNAN,JUDGE. mns