IMPORTANT POINTS
When a plaintiff objects to a claim contending that the transfer is fraudulent, it necessarily means that the defendant is still the owner of the property and the attachment could continue only on such a finding- If the court finds that the claim is justifiable, necessarily, the attachment has to be vacated.

Shaffique, J.

RFA No.529/2015 has been filed by the plaintiff in OS No.28/2014 challenging an order passed in a claim petition filed as IA 838/2014. The claim petition has been filed by the first respondent herein under Order XXXVIII Rule 8 of the Code of Civil Procedure (for short 'CPC'). The Court below allowed the said application on a finding that the property under attachment was transferred in the name of the claimant/1st respondent by a registered sale deed dated 4/7/2014 prior to the order of attachment. In fact the plaintiff contended that the transfer was fraudulent and hit by S.53 of the Transfer of Property Act (for short 'TP Act'). But placing reliance on the judgment in Rajan @ v. Rajan Gopinathan v. Dr.D.Jayashree Nayar and another (2010 (1) KLT 142), it was held that adjudication of fraudulent transfer can be made only during execution proceedings and accordingly the claim petition was allowed vacating the order of attachment.

2. When the above matter came up for hearing before a Division Bench of this Court, the matter was referred to a Full Bench doubting the judgment in Rajan's case (supra) as per reference order dated 21/6/2016. It was observed that O.XXXVIII Rule 8 CPC is sufficient to adjudicate a claim in a property sought to be attached before judgment.

3. In RFA No. 777/2015 also, a similar question has arisen for consideration. In that case also, the plaintiff had preferred the appeal challenging order dated 1/8/2015 in IA 914/2014 in OS No.18/2014 of the Sub Court, Alappuzha. IA No.914/2014 was filed under Order XXXVIII Rule 8 for releasing the attachment. The application is filed by the 3rd respondent herein inter alia claiming right in respect of the property. It was contended that the order of attachment was dated 9/4/2014 and it was made absolute on 23/5/2014. The property was purchased by the petitioner/3rd respondent as per document No.2736/12 for valid consideration and that he is in possession of the property. Court below having referred to the judgment in Rajan's case (supra) observed that in so far as the claim petitioner had purchased the property prior to the date of attachment, the plaintiff's contention regarding fraudulent transfer of the property u/s 53 of the TP Act need not be considered at the original side and accordingly the application was allowed and the attachment was vacated. When the above matter came up for hearing before the Division Bench, doubting the judgment in Rajan's case (supra), the matter was referred to be considered by a Larger Bench.

4. In the light of the aforesaid two reference orders, these two cases had been placed before us.

5. The counsel for the 1st respondent in RFA No.529/2015 has filed IA No. 1091/2018 seeking for dismissal of the appeal on the ground that decree has been passed in OS No.28/2014. We do not think that such an application can be entertained as a question of law involving divergent views had been referred to this Court, which requires to be answered. If the attachment of property can be sustained, there is no necessity for a further attachment if a decree is passed in favour of the plaintiff.

6. First let us examine the manner in which Rajan's case (supra) has been decided. It was held that in so far as the purpose of attachment before judgment is distinct and different from attachment in execution, the attachment before judgment would cease when the suit is dismissed on merits or if it is dismissed for default. The attachment before judgment will not revive on setting aside the order of dismissal of the suit for default and on restoration of the suit. It is observed that O.XXI R.58 (2) provides for determination of all questions including question relating to right, title or interest in the property attached, arising between the parties or their representatives and it is further qualified by the expression “relevant to the adjudication of the claim or objection”. Paragraphs 21 and 22 reads thus:-

“21. In order to answer the question