The transfer of property made with the intent to defeat or delay the creditors is voidable at the option of any creditor, and the property can be accessed by the creditor in accordance with the law.

Raju, J

1. The above letters Patent Appeal has been filed against the order of the learned single Judge dated 20.7.1989 in A.A.O. No. 840 of 1988, whereunder the learned single Judge, while concurring with the order of the learned second Additional Subordinate Judge, Coimbatore, dismissing a claim petition filed in E.A. No. 1791 of 1982 in E.P.45 of 1982 in O.S.399 of 1980 has dismissed the appeal on the view that there was no infirmity or illegality in the order of the Second Additional Subordinate Judge.

2. Mr. S.V.Jayaraman, learned counsel appearing for the appellant strenuously argued that the learned first Appellate Judge, as also the learned trial Judge failed to see that the attachment of immovable property had been effected only on 13. 1982 and that even before the said date, the appellant has purchased the property under a sale deed, dated 211. 1981 in pursuance of the sale agreement, dated 15. 1981 and there was no pleading by the creditor that the judgment debtor had no other property than the property under attachment and further, the creditor has not also alleged that the transfer is a fraudulent one.

3. The learned counsel took us at length through the order of the learned Subordinate Judge and also the learned single Judge of this Court. The 1st respondent-creditor is a Bank and the properties in question have been hypothecated in favour of the first respondent Bank. It is seen from the materials on record that the appellant claimant was fully aware and had the required knowledge of not only the debt, but the pendency of the proceedings before the court for the recovery of the same. It is in the above circumstances, that the claim petition filed under order 21 Rules 58 and 59. C.P.C. came to be dismissed, holding that the appellant is not entitled to any relief, he having his eyes wide open, purchased such a property.

4. The learned First Appellate Judge also adverted to the provisions contained in section 53 of the Transfer of Property Act and observed that the sale is hit by section 53 of the Transfer of Property Act.

5. Section 53 of the Transfer of Property Act provides that every transfer of immovable property made with intend to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated and delayed, though a transferee in good faith and for consideration and has acquired the property, his claim is protected. It also provide that a suit instituted by a creditor to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of or for the benefit of all the creditors. The facts and circumstances of the case as found disclosed that the appellant transferee was not one, who has acquired the property in good faith and for consideration. The learned counsel contended that the finding recorded has the effect of nullifying the sale in favour of the appellant. We cannot agree with the said claim. It is well settled that the factum of finding recorded on the nature of the transaction that a particular sale transaction or a transfer is hit by section 53 of the Transfer of Property Act has the resultant effect that the property was transferred in order to avoid the debt in question of the creditor and it has no automatic effect of nullifying the transaction and that too in a claim petition alone, which came to be dismissed. The effect is the purchaser cannot avoid the debt in question by virtue of his purchase and it would be open to the creditor to get at the properties in accordance with law. The plea that there is no averment by the creditor that there are no other properties than the one under attachment and that there was no allegation that the transfer is a fraudulent one cannot meet with our approval or acceptance. This is a property, which is specifically hypothecated to the Bank and a person, who has recklessly purchased such a property without proper verifica