1. The execution second appeal arises out of the judgment of the Subordinate Judge’s Court, Neyyattinkara in A.S No.155 of 2001 which in turn arose out of the order dated 9.10.2001 in E.A No.661 of 2000 in E.P No.92 of 2000 in O.S No.1053 of 1996 on the files of the Munsiff’s Court, Neyyattinkara.

2. Respondents 1 to 3 in the execution second appeal filed the aforesaid E.P for executing the decree in O.S No.1058 of 1996 by attachment and sale of the property comprised in Sy. No.290/6B of Anavoor village, Neyyattinkara Taluk having a total extent of 1 acre 72 cents. The appellants filed the claim petition i.e. E.A No.661 of 2000 before the Execution Court stating that at the time of attachment of the over the property. According to the appellants, the property attached belonged to one Joseph and he sold the same in the name of the fourth respondent who is the judgment debtor in the aforesaid case by Ext.A1 (in E.A.No.661/2000). The appellants further allege that the judgment debtor was the wife of the first appellant and Ext.A1 sale deed was only a benami transaction as the actual owner was the second appellant. According to the appellants, the sale deed was obtained with the funds of the first appellant. It was also alleged that the marital tie between the fourth respondent and the first appellant ceased and thereafter when there was a move of alienating the attached property, the appellants filed O.S No.1180 of 19999 for a declaration of their title and possession which was decreed on 24.6.2000 by Exts.A2 and A3. Therefore, according to them, the appellants rights have been declared by a competent civil court and the judgment debtor had no saleable interest after Exts.A2 and A3. Thus, they prayed for raising the attachment in the said E.A.

3. Respondents 1 to 3 in the execution second appeal resisted the claim petition saying that the fourth respondent is the owner of the property. According to them, Ext.A1 was not a benami transaction. They also contended that Exts.A2 and A3 are not binding on them since they were not parties and those documents are created fraudulently and collusively. Therefore, they prayed for a dismissal of the claim petition.

4. The execution court rejected the contentions of the appellants and dismissed the E.A against which, the appellants filed A.S No.155 of 2001 before the Subordinate Judge’s Court, Neyyattinkara which refused to entertain the appeal and dismissed the same. It is with this background, the appellants have approached this Court.

5. The first appellant died during the pendency of this appeal and additional appellants 3 and 4 were impleaded subsequently.

6. R.S.A No.333 of 2004 arises out of the judgment and decree in A.S No.51 of 2001 on the files of the Sub Court, Neyyattinkara which in turn arose out of the judgment and decree in O.S No.86 of 2000 on the files of the Munsiff’s Court, Neyyattinkara. The said appeal was filed by respondents 1 to 3 in the above execution second appeal. The first respondent is the first appellant in the execution second appeal and after his death, additional respondents 5 and 6 were impleaded. The second respondent is the second appellant in the execution second appeal. The third respondent is a person by name Duryodhanan and the fourth respondent is the mother of the second respondent.

7. Respondents 1 and 2 filed the aforesaid suit against the appellants (arrayed as defendants 2 to 4), the third respondent (arrayed as the first defendant) and against the fourth respondent (arrayed as the fifth defendant). The said suit was for a declaration that plaint A schedule property was held by the fifth defendant as benamidar for the plaintiffs and the decree in O.S No.1053 of 1996 was secured by the defendants 2 to 4 in collusion with the fifth defendant and, therefore, the same is not binding on the plaintiffs. They also prayed for a recovery of a property which had been settled in favour of defendants 2 and 4 as per the decree in the previous suit.

8. As p