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P. SOMARAJAN
L. K. Prabhu @ L. Krishna Prabhu, S/o. Lakshmana Prabhu – Appellant
Versus
K. T. Mathew @ Thampan Thomas, S/o. Late K. M. Thomas – Respondent
Headnote: Read headnote
JUDGMENT :
1. It is against dismissal of a claim petition, the owner of the property came up in appeal. Claim petition was preferred under Order XXI Rule 58 C.P.C. during the pendency of the suit as against 'attachment before judgment' over the property under Order XXXVIII Rule 5 C.P.C..
2. It is an admitted case that even prior to the 'attachment before judgment', the property was transferred by the defendant to the claimant almost seven months prior to the order of 'attachment before judgment'. The questions came up for consideration before the trial court are whether the document of transfer, Ext.A1 would stand hit by Section 53 of the Transfer of Property Act and whether the appellant/ claimant has got right, title and interest over the property attached. Interestingly, the extent of jurisdiction that can be exercised under Rule 58 of Order XXI C.P.C. was not taken up or considered by the trial court.
3. The very case advanced by the plaintiff is that the document of
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.
(....
A transfer made with knowledge of an attachment before judgment can be contested as fraudulent under Section 53 of the Transfer of Property Act.
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....
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 ....
Transfers made during an injunction are void; claimants must prove bona fides as transferees to assert rights over attached property.
Rule 11-A of Order XXXVIII, which was inserted by Amendment Act 104 of 1976, says that provisions applicable to an attachment made in execution of decree.
Point of Law : If the court omits to give such a direction regarding continuance, attachment shall be deemed to have ceased.
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....
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