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MARY JOSEPH
BEENA PRASAD W/O ALANCHERY PRASAD – Appellant
Versus
PRADEEP S/O PONNOTH UNNIKRISHNAN – Respondent
Headnote: Read headnote
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
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 ....
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.
(1) Attachment before judgment cannot extend to properties which have already been alienated prior to institution of suit – Attachment before judgment cannot override a prior completed transfer.
(....
Transfers made during an injunction are void; claimants must prove bona fides as transferees to assert rights over attached property.
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....
Order XXI, Rule 58 insist that while adjudicating a claim to attached property, court has to decide all questions relating to right, title and interest in property arising between parties to proceedi....
Point of Law : If the court omits to give such a direction regarding continuance, attachment shall be deemed to have ceased.
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