IMPORTANT POINTS
When property is under attachment and it is sought to be lifted, the court cannot under any circumstances assume power under Order XXI Rule 58 and proceed to decide a claim put forward by a third party seeking adjudication of his purported rights in the property. Enquiry contemplated under Order XXI Rule 58 into the rights or interests of the claimant is directed exclusively towards examining the sustainability or legality of the order attaching the property. It does not extend to any other situations nor to any person complaining that an order creating change was illegal or wrongly passed by the court in respect of his property.

JUDGMENT :

T.V.ANILKUMAR, J.

1. This appeal is filed by the claim petitioner in O.P.No.670 of 2009 before the Family Court, Kozhikode, challenging dismissal of her claim seeking to lift attachment before judgment made in respect of 2.83 cents of land allegedly owned by her.

2. She claimed to be the owner of the aforesaid petition B schedule 2.83 cents of land in re-survey No.59/1 of Meenchanda Village acquired as per document No.1910/2009 dated 12.7.2009 of Meenachanda Sub Registry executed in her favour even before the institution of the original petition. It is an admitted fact that she purchased the property before the institution of the original petition.

3. The original petition was filed by the 1st respondent in the claim petition who is the wife of the 4th respondent. The parties are Mohamadans. Respondents 2 and 3 are the minor children born to the spouses. The claim made in the original petition was for an order for recovery of arrears of past maintenance from the father. The claim petitioner is admittedly his sister.

4. According to the claim petitioner, she is a bona fide purchaser for value without notice of the purported claim of minor children in respect of the property. According to her, the attachment before judgment needed to be lifted since she was not a party to the original petition and further, she had acquired prior interest in the petition B schedule property before the date of issue of attachment itself. Therefore, invoking the provisions under Order XXXVIII Rule 8 read with Order XXI Rule 58 of the Code of Civil Procedure, 1908 (for short, 'the CPC' only), she sought to lift the order of attachment and communicate the same to the concerned Sub Registry.

5. The 4th respondent/the brother did not contest the proceedings. His wife and children who are respondents 1 to 3 filed counter statement, seeking to sustain the order of attachment alleging that document No.1910/2009 was sham and fraudulently created. It was contended that the document in her name was executed without consideration and with the sole object of defeating the rights of the minor children to recover arrears of maintenance by proceeding against the petition B schedule property. The substance of their contention is that the creation of document No.1910/2009 was the result of collusion between brother and sister.

6. No evidence was adduced before the Family Court by either parties. The document No.19/2009 dated 12.7.2009 in the name of claim petitioner alone was available on record before the court when the impugned order dated 3.9.2013 was passed in I.A.No.989/2012 in the original petition.

7. The court below having regard to the contentions raised by the parties before it, held that the transaction was fraudulent. It was held to be a sham transaction brought into existence at the instance of the 4th respondent in collusion with the claim petitioner.

8. The claim petitioner is seriously aggrieved by the decision of the court below. She contended that she is a purchaser in good faith and she came to know of the attachment only when she proposed to arrange for mortgaging petition B schedule property for the purpose of taking loan from a bank.

9. It is indisputable that the document in the name of claim petitioner was executed two weeks prior to the institution of the original petition. Under law, a prior interest created in favour of a third party before the institution of the suit or proceeding is immune from attachment. This is what Order XXXVIII Rule 8 read with Order XXI Rule 58 of the CPC clearly indicates. But this could be said to be so only if the holder of prior interest shows that the interest or right acquired by him arises out of a document legally and validly executed in his name. There is serious dispute at the instance of respondents 1 to 3 that the document is sham and was fraudulently created.

10. A document is said to be sham when it is not intended to operate between parties. In other words, it is not what it actually purports to dem