IMPORTANT POINTS:
When the legislature deemed it fit that “any claim” to attach property is to be considered under O.XXXVIII R.8, there is no reason why the power of the Court should be curtailed and should stop short of a plea under S.53 of TP Act. The procedural difficulties in considering a claim u/S. 53 should not be a reason to deprive the Court from considering a claim and the defence. Civil Courts are enjoined to consider the disputes between the parties and when substantive rights are created and such rights are being flouted, it is for the civil court to consider the respective contentions and arrive at a proper decision. That the consideration of such matters would be comprehensive should never be a reason to take away the jurisdiction of a civil court. Civil Court is bound to consider all suits of a civil nature except, suits of which their cognizance is expressly or impliedly barred- judgment in Rajan's case (2010 (1) KLT 142) does not lay down the correct law. While considering the application under O. XXXVIII R.8, the Court is enjoined with the power to consider whether the transfer is fraudulent in terms of S.53 of the T.P Act.

K. Harilal, J.

Since the aforesaid Mat. Appeal and the OP(FC) are directed against the common order, both the appeal and the Original Petition are heard together and disposed of accordingly.

2. The appellants in Mat. Appeal No. 101 of 2019 are the petitioners in OP(C) No. 519 of 2018 on the files of the Family Court, Tirur. (The parties are referred to as in the Mat. Appeal.) The aforesaid OP was filed seeking a decree for recovery of gold ornaments and money, and for realization of maintenance allowance from the second respondent. Along with the said Original Petition, they had filed I.A. No. 1247 of 2018 under Order XXXVIII Rule 5 of the CPC for attachment before judgment. As per order dated 19.09.2018, the Family Court had passed a conditional order of attachment in favour of the appellants. Subsequently, the aforesaid conditional attachment was made absolute. While so, the first respondent in the Mat. Appeal had filed a claim petition as I.A. Nos. 1331 and 1247 of 2018 in the said OP to lift the attachment on the ground that he had purchased the property from the 2nd respondent as per document Nos. 1019 of 2018 and 1020 of 2018 executed in March, 2018. It is further stated that the remaining portion of the property was also purchased by him from the first appellant as per document No.1018 of 2011. The first respondent/claim petitioner further contended that a few other items were also purchased, by virtue of the sale deed Nos. 1021 of 2018 and 1017 of 2018, executed by the 2nd respondent. All those 5 documents were prepared by the same document writer and the same were executed simultaneously, on the same day, and registered with consecutive numbers. The first appellant, who is the executant of one among the above-mentioned document, was very much aware about the purchase of the attached property by the first respondent/claim petitioner. But, she had clandestinely filed I.A. No. 1247 of 2018 to get an order of attachment, by defrauding the court. With the aforesaid averments, he prayed for lifting the attachment.

3. The appellants had filed a counter statement contending that the claim of the first respondent/claim petitioner that he purchased the property during March 2018 is false. According to the first appellant, it is a paper of transaction clandestinely made, by the first respondent/claim petitioner and the 2nd respondent, to defraud the appellants. The 2nd respondent obtained the signatures of the first appellant under the guise of submitting an application for encumbrance certificate. Document Nos. 1019 of 2018 and 1020 of 2018 are not valid documents and those are fraudulent transfers. For the maintenance of the minors, there was charge in the said property. The first appellant did not receive any consideration for executing document No. 1019 of 2018. The said document was also made fraudulently. The first appellant was not aware of the execution of the said documents, and the allegation that the OP is the result of the collusion between the appellants and the 2nd respondent is absolutely false. That apart, they had filed a counter claim along with the counter statement, seeking a declaration that Exts.P1 and P2 sale deeds are hit by Section 53 of the Transfer of Property Act and thereby Exts.P1 and P2 are not binding on them.

4. On the aforesaid rival pleadings, the Family Court considered and allowed the claim petition on a finding that the claim petitioner, who purchased the schedule property, much before the attachment before judgment, as per Exts.P1 and P2, is entitled to an order lifting the attachment. The legality and correctness of the aforesaid findings are challenged in this appeal.

5. Heard Smt. N. Deepa, the learned counsel for the appellants/Original Petitioners and Shri. Jamsheed Hafiz, the learned counsel appearing for the first respondent/claim petitioner.

6. The sum and substance of the arguments advanced by the learned counsel for the appellants/Original Petitioners is that the court below h