Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MARY JOSEPH, J.
BEENA PRASAD W/O ALANCHERY PRASAD – Petitioner
Versus
PRADEEP S/O PONNOTH UNNIKRISHNAN – Respondent
O.P. (C) No. 499 of 2018
Decided On : 15-12-2022
Constitution of India, 1950 - Article 227 - Code of Civil Procedure, 1908 - Order 1 Rule 10(2), 3, Order XXXVIII Rule 8, 5, Order VI Rule 17 - Transfer of Property Act, 1882 - Section 53 - Restoration of Suit - Transferred Property - Petitioner/plaintiff filed I.A. for restoration of Suit dismissed for default and also for setting aside ex-parte decree passed in counter claim - Intention to defraud plaintiff who has been acknowledged by him in compromise filed in O.S. as his creditor is inherently evident from conduct of 1st defendant/1st respondent, transferring property in favour of his wife.
Findings of the Court:
Conduct of 1st defendant/1st respondent transferring immovable property during interregnum period undoubtedly has impact of strengthening contention raised by petitioner/plaintiff that it was meant to defeat him in his pursuit to get money realised on a decree being passed in suit, in his favour - Impugned order being passed without going into relevant aspects underlying issues involved in suit got restored and made by petitioner/plaintiff through objection raised in interlocutory application filed as I.A. and averments made in I.A. and in disregard of dictum of Full Bench in Verizon Builders and Developers Ltd. supra, same only deserves to be set aside - As held by Apex Court in Om Prakash Gupta (supra), subsequent events that occur “inter partes” after filing of Suit shall be taken into consideration in that Suit itself by a Court in seizin of Suit to shorten litigation - Court below is highly erred and unjustified in relegating such issues to be adjudicated by an execution court while pursuing with execution of decree passed in suit - Impugned order suffers on account of above reasons and fails - Common order is liable to be set aside.
Result: Petition allowed.
JUDGMENT :
MARY JOSEPH, J.
1. Original Petition is filed under Article 227 of the Constitution of India by the plaintiff in a Suit pending on the files of Sub Court, Chavakkad as O.S. No. 3/2015. The 1st respondent in the Original Petition is the defendant in the above Suit and the 2nd respondent is his wife who is proposed to be brought on record as additional 2nd defendant.
2. O.S. No. 3/2015 was a Suit filed for realisation of a sum of Rs. 17,00,000/- with interest from 30.12.2010 as well as future interest at the rate of 12% per annum arrived at pursuant to a compromise recorded in a prior suit pending on the files of Munsiff Court, Chavakkad as O.S. No. 636/2010. Pursuant to the compromise, towards discharge of the liability a cheque was issued by the debtor, which was bounced on presentation for the reason, payment stopped by drawer. Indigent Suit filed as POP No. 14/2013 was lateron numbered as O.S. No. 3/2015.
3. 1st defendant/1st respondent had filed written statement raising a counter claim. The petitioner/plaintiff had also filed written statement in the counter claim.
4. The only property of the 1st defendant/ 1st respondent was the subject matter of an order of attachment before judgment passed by the court below in I.A. No. 1407/2013 filed in the suit on hand.
5. The Suit was listed for trial by the court below on 02.07.2016. The petitioner/plaintiff being ill could not attend the court on the day scheduled for trial and therefore the Suit was dismissed for default and the counter claim was decreed ex-parte. Petitioner/plaintiff filed I.A. No. 1291/2016 in O.S. No. 3/2015 on 23.07.2016 for restoration of the Suit dismissed for default and also for setting aside the ex-parte decree passed in the counter claim. The 1st respondent/1st defendant filed objection in the above I.A.
6. In the meantime, the 1st respondent/1st defendant filed I.A. No. 1175/2016 seeking to lift the order of attachment passed in Ext.P4 application. Plaintiff filed objections in the application on 26.07.2016. The application filed as above was allowed by he court below on 27.07.2016 and immediately thereafter, the 1st respondent/1st defendant transferred the property in favour of his wife, the 2nd respondent in the Original Petition on hand, by executing settlement deed No. 449/2016 at SRO, Chavakkad on 01.08.2016.
7. Original Suit was restored by the court below and was relisted. The petitioner/plaintiff then filed I.A. No. 1292/2016 for attaching the property again. The 1st respondent/1st defendant filed objection in the I.A apprising the court about the transfer of the property by him to his wife, the 2nd respondent herein. The petitioner had also filed I.A. No. 261/2018 under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 (for short ‘CPC’) to get the transferee wife as additional 2nd defendant in the Suit and I.A. No. 262/2018 to incorporate pleadings that the transfer effected was intended to defeat the right of the petitioner/plaintiff who stands in the footing of creditor of the 1st respondent/1st defendant, to schedule the property and also to seek for a charge decree.
8. The 1st respondent/1st defendant filed objection in the above application. The Suit being listed for trial, I.A. No. 263/2018 was also filed for removing the same from the list.
9. The court below dismissed I.A. Nos. 261/2018 and 262/2018 by a common order passed on 09.02.2018. Consequently I.A. No. 263/2018 was also dismissed.
10. The true copies of the interlocutory applications filed by the petitioner/plaintiff, objections filed by the 1st respondent/1st defendant in those, orders passed by the court below in the respective applications were produced alongwith the Original Petition on hand respectively as Exts.P1 to P14. Ext.P13 is the true photostat copy of the order under challenge in the Original Petition on hand.
11. Being aggrieved by Ext.P13 common order petitioner has approached this Court seeking exercise of supervisory jurisdiction of this Court to reverse t
Civil courts are enjoined to consider disputes between parties and when substantive rights are created and such rights are being flouted, it is for civil court to consider respective contentions and ....
Debt can be defined as an obligation to pay an ascertained sum of money, and therefore, a claim for compensation does not come within that purview.
The main legal point established in the judgment is that a claim petition filed under Order XXI Rule 58 of CPC shall be adjudicated upon as if it is a regular suit, and any adjudication on the rights....
A transfer made with knowledge of an attachment before judgment can be contested as fraudulent under Section 53 of the Transfer of Property Act.
Rule 58 of Order XXI C.P.C., which is extracted as adjudication of claims to or objections to attachment of property.
Transfers made during an injunction are void; claimants must prove bona fides as transferees to assert rights over attached property.
The court determined that a pre-attachment transfer of property is valid if no evidence demonstrates fraud under Section 53 of the Transfer of Property Act.
During pendency in any court having authority within limits of India of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in ques....
The main legal point established is that property conveyed to a Defendant's wife can be attached to satisfy a decree if the conveyance was done to evade execution, and legal heirs are liable to satis....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
