K.T. Sankaran, J.

The question of law involved in this appeal is the following:

While disposing of an application under Order XXXVIII Rule 8 read with Order XXI Rule 58 of the Code of Civil Procedure, is it obligatory to determine the question whether the transfer made by the judgment debtor is a fraudulent transfer within the meaning of Section 53 of the Transfer of Property Act?

2. Rajan, the appellant, instituted the suit, O.S.No.78 of 2006 on the file of the Court of the Subordinate Judge of Mavelikkara, against the second respondent Leela, for realisation of a sum of Rs.8,69,000/-on the basis of the promissory note allegedly executed by Leela in favour of Rajan for Rs.6,60,000/-. The suit was filed on 4.4.2006. I.A.No.522 of 2006 was filed by the plaintiff under Order XXXVIII Rule 5 of the Code of Civil Procedure for attachment before judgment of an extent of 8.083 cents of land situated in Elamkulam Village in Ernakulam. The court below passed an order of attachment dated 12.4.2006. The attachment was effected on 17.4.2006. The first respondent, Dr.Jayasree Nayar, filed I.A.No.2044 of 2006 for lifting the order of attachment before judgment made in I.A.No.522 of 2006. The application was filed under Order XXI Rule 58 of the Code of Civil Procedure. The court below, by the order dated 24.6.2008, allowed the application and the attachment was lifted, which is under challenge in this appeal filed by the plaintiff.

3. Dr.Jayasree Nayar, the claimant, contended that the property under attachment had been sold by the defendant to one Dileep on 12.1.2006. Dileep sold the property to the claimant on 6.10.2006. The claimant stated that she is a bona fide purchaser for value. The property was purchased by Dileep before the institution of the suit. The claimant purchased the property after making due enquiries and believing that the property is free from mortgage, charge or attachment. The application for attachment before judgment was filed making a false statement that the property belonged to the defendant Leela at the time of making the application. She had no right in the property at the time of instituting the suit or at the time of passing the order of attachment.

4. The plaintiffs contended in the objection to I.A.No.2044 of 2006 that the document dated 6.10.2006 was executed in favour of the claimant as a result of the collusion between the defendant, Dileep and the claimant. In the document dated 6.10.2006, the defendant Leela is also one of the executants. The sale deed in favour of the claimant is a fraudulent transfer and it does not bind the plaintiff, a creditor of the defendant.

5. Before this Court, a counter affidavit is filed by the claimant Dr.Jayasree Nayar in I.A.No.3065 of 2008, the application filed by the plaintiff for staying the order passed by the court below. The plaintiff has filed a reply affidavit as well. Several facts which are not disclosed in the application and objection filed by the parties before the court below are revealed in the counter affidavit and reply affidavit. Arguments were advanced by the counsel on either side based on the averments in the affidavits as well. We think it fit to briefly refer to the averments in the affidavits as well.

6. In the counter affidavit, Dr.Jayasree Nayar states, inter alia, as follows: An extent of 13.253 cents of land belonged to one Thomas who sold that property to the defendant as per the sale deed dated 6.10.1977. The defendant was also granted the right of user of the pathway situated on the southern side of the property for convenient access to the property sold to the defendant. Subsequently, the defendant sold an extent of 5.170 cents of land to a stranger on 8.5.1990. The defendant retained the balance extent of 8.083 cents. She constructed a building in that property. The defendant made an advertisement in the newspaper inviting the prospective buyers for the purchase of 8.083 cents of land and the building. The property was sold to