Point of Law: 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.

ORDER :

P.G.Ajithkumar, J.

The 1st respondent in R.F.A.(Misc) No.1 of 2019 has filed this petition for review under Section 114 read with Order XLVII, Rule 1 of the Code of Civil Procedure, 1908.

2. The appeal was allowed as per the judgment dated 28.09.2022, reported as Mohammed v. Mannil Abdul Gadhafi alias Abdul Gadafi Mannil, [2022 (6) KLT 269 : 2022 (4) KLJ 362 : 2022 (6) KHC 369 : 2022 KHC OnLine 761 : MANU/KE/3474/2022]. We later noticed that there occurred a mis-statement of law while we discussed the law laid down by the Apex Court in Vareed Jacob v. Sosamma Geevarghese and others [(2004) 6 SCC 378], which was a divided verdict, and hence the matter was listed as “to be spoken to”. In the meantime, this review petition has been filed.

3. Review is sought on the following grounds:

(i) the claim petition filed by the petitioner was disposed of by the Sub Court, Ernakulam without there having a detailed enquiry as contemplated in Order XXI, Rule 58 of the Code, wherefore the matter should have been remanded for a fresh consideration;

(ii) the 1st respondent failed to discharge his burden to prove that the sale deeds in favour of the petitioner are vitiated;

(iii) the finding that Section 53 of the Transfer of Property Act, 1882 was applicable to this case is incorrect;

(iv) the principle laid down in Vareed Jacob (supra) was wrongly applied; and

(v) the right in favour of third parties in the disputed property has already been created and therefore the claim petition should not have been decided.

4. Heard the learned Counsel appearing for the petitioner and also the learned Senior Counsel appearing for the 1st respondent. Respondent Nos.2 and 3 did not choose to appear in the appeal as well as in this petition.

5. The order of the Sub Court, Ernakulam in I.A.No.2520 of 2017 in O.S.No.230 of 2016 was impugned in the appeal. That was a claim petition filed under Order XXXVIII, Rule 8 read with Order XXI, Rule 58 of the Code.

Before the learned Sub Judge, no oral evidence was adduced.

Exts.A1 to A3 and Exts.B1 to B12 were produced. After considering such materials, the impugned order dated 01.12.2018 in I.A.No.2520 of 2017 in O.S.No.230 of 2016 was rendered. The order was in favour of the review petitioner. He did not have a case while considering the appeal that a detailed enquiry as contemplated in Order XXI, Rule 58 of the Code was not done and hence the matter should have been remanded to the Sub Court. The provisions of Order XXI, Rule 58 insist that while adjudicating a claim to an attached property, the court has to decide all questions relating to right, title and interest in the property arising between the parties to the proceedings.

6. In Verizon Builders and Developers Limited and another v. Jyothi Susan John and others [2019 (1) KLT 100] a Full Bench of this Court held that insofar as the procedure under Order XXXVIII Rule 8 has incorporated Order XXI Rule 58 for adjudication of claims, any objection filed regarding the claim has to be adjudicated in accordance with law. When a claim is made in respect of a property by a third party claimant stating that the property attached has been assigned in his favour, even prior to the date of attachment, necessarily, the plaintiff/respondent gets an opportunity to file an objection and contend that the transfer was fraudulent. Therefore, while considering the claim, it is quite inconceivable to observe that the objection to the claim petition regarding fraudulent transfer under Section 53 of the TP Act need not be considered. Accordingly, it was held that when Order XXXVIII Rule 8 of the Code insist on to follow the procedure under Order XXI Rules 58 while considering a claim, in the adjudicatory procedure on a claim petition all questions relating to right, title or interest in the property attached has to be enquired into and answered.

7. From the order of the Sub Court dated 01.12.2018, it is evident that all the materials produced before it by the respective parties were consider