B. KEMAL PASHA, J.

1. When a property is put to sale in execution of a money decree, is the court executing the decree empowered to decide the question as to whether the transfer of the said property by the original judgment debtor in favour of his daughter through a settlement deed just prior to the filing of the suit and on getting the suit notice, is a fraudulent transfer?

2. O.S. No. 360 of 2002 of the Subordinate Judge's Court, Kollam was decreed on 18.02.2009 thereby allowing the respondent herein to realise an amount of Rs. 29,70,000/- from the additional 2nd defendant to the extent she inherited from the original defendant. The said additional 2nd defendant is the petitioner herein. The original defendant is her father, who died pending the suit. The cause of action for the suit had arisen on 16.10.1997. It seems that notices were issued demanding the said amount from the original defendant on 18.01.2002 and 22.01.2002. The amounts were not paid and the demands were not met. Immediately thereafter, on 20.09.2002 a settlement deed was executed by the defendant in favour of the present petitioner in respect of the property in question.

3. In the suit, an attachment before judgment under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 was obtained by the plaintiff, who is the respondent herein. On the death of the defendant, the petitioner was impleaded as the additional 2nd defendant. In respect of the property in question, the attachment was subsisting all along the suit and the attachment has not been lifted. The petitioner was aware of the attachment over the property which is being claimed by her at present. There was no attempt to get the attachment lifted and the petitioner continued to suffer the attachment. After the passing of the decree, the same was put in execution through E.P. No. 21 of 2010 before the court below. There is another decree also pending execution before the court as against the petitioner herein. The court below has ordered the sale of the property and the rateable distribution in the two EPs. The petitioner has challenged the execution of the decree as against the property in her favour.

4. Heard the learned counsel for the petitioner and the learned counsel for the respondent. According to the learned counsel for the petitioner, the property devolved on her through the settlement deed dated 20.09.2009 executed by the original defendant, cannot be sold in execution of the decree and the same is not permitted by the judgment and decree. The argument is that the respondent herein is allowed to realise the decree amount from the petitioner to the extent she inherited from the original defendant and that the property in question being claimed by her at present is not one inherited by her, whereas it devolved on her through a document. Further, according to the learned counsel for the petitioner, 13 other items of property have been devolved on her by way of inheritance from the original defendant and therefore, the respondent decree holder ought to have proceeded against those properties inherited by her and not as against the property which she obtained through the settlement deed.

5. It is evident that the transfer of the property in question was effected by the father of the petitioner in her favour on getting the suit notice and just before the filing of the suit. The said transfer was not one for consideration. On hearing both sides, and on a perusal of the judgment and decree and Ext.P4 order, it is evident that the circumstances in which the said settlement deed dated 20.09.2002 was executed, clearly reveal that it is nothing but a fraudulent transfer within the meaning of Section 53 of the Transfer of Property Act, deliberately made with intent to defeat the creditors and to delay the execution of the decree that may be passed against him. Therefore, the property in question can only be treated as a property inherited by the petitioner from her father.

6. The next questi