Ratios:
a. The decree holder can avoid the fraudulent transfer of a property made by the judgment debtor by simply filing execution petition for sale and he need not file any separate suit for declaration.
b. Proof of purchase in good faith and for valuable consideration is the defence against the claim of fraudulent transfer.

The petitioner is the judgment-debtor in R.E.P. No.40/2006 in O.S.No.556 of 2001, on the file of the Subordinate Court, Erode, now pending for execution in District Munsif Court, Thiruchengode. The respondent has filed an Execution Petition for attachment and sale of the immovable property belonging to the judgment-debtor under Order 21, Rule 11(2) CPC.

2. The following is the allegations in terse contained in the counter filed by this petitioner:

1. This respondent has no means to pay off the decree debt. On 010. 1988, he mortgaged the E.P. mentioned property in favour of Komarapalayam J.K.K. Nataraja Nagar Cooperative Building Society for Rs.2,10,000/-. Since the loan was not discharged as on 30.11.2005, a final notice was issued to him stating that in default of payment of Rs.5,10,194/-, the property would be brought for auction.

2. This respondent is suffering from blood-pressure and is taking treatment. He also incurred loss in his business and is maintaining his family with hardships. In this situation, the said society issued final notice for sale, hence, he approached the society. One Thandavan intended to bid the auction and he has also approached the society. The officials of the society suggested this respondent to sell the property to discharge the loan and the balance may be taken by him, otherwise the property would be sold in auction. Hence, pressurised by the circumstances, he sold the property on 30.11.2005 for Rs.4,25,000/- to Thandavan and discharged the entire society loan. On the date of filing of the Execution Petition, the property did not belong to this respondent. Hence, the petition may be dismissed.

3. The learned District Munsif, Thriuchengode, turning down the contentions of this petitioner, ordered attachment of the property. Aggrieved as against the said order, the petitioner is before this Court.

4. The Executing Court has carefully scrutinised the oral evidence on record and recorded finding that it is incorrect to state that on 30.11.2005 the property was sold to Thandavan but, the sale was effected only on 012. 2005, as per the evidence of the judgment debtor and that even prior to the said sale, on 111. 2005, the loan was discharged as evident from Ex.R5, the discharge receipt issued by the society. It has also observed that even though the judgment-debtor knew fully well that he had obligations to satisfy the decree debt in favour of the decree holder, his attitude in executing sale in favour of Thandavan is not in accordance with law. It has also raised doubt that the purchaser Thandavan, being a milk-vendor, who is selling about 40 litres of milk every day earning a sum of Rs.500/- per day was able to pay Rs.4,25,000/-on a single occasion, without there being any agreement for sale and this transaction would indicate that in order to defraud the creditor the judgment-debtor has sold the property.

5. The learned counsel Mr.N.Manoharan, appearing for the petitioner, would contend that inasmuch as the sale was effected by this petitioner much earlier to the filing of the Execution Petition that on the date of filing of Execution Petition this judgment-debtor was not the owner of the property, that none of the ingredients in Section 53 of the Transfer of Property Act, would be applicable to the present case and that by means of oral evidence adduced on his behalf, the bona fide intention of the petitioner could be ascertained.

6. Arguing on the other side of the coin, the learned counsel Mr.S.Natarajan, appearing for the respondent, would state that when the judgment-debtor was bound to pay off the decree amount to this respondent, in the guise of paying off the loan amount to the society, he has fraudulently executed the sale deed, which transaction is hit by Section 53 of the Transfer of Property Act and that the Executing Court has followed the decisions of this Court and there is no need to interfere with the order challenged before this Court.

7. In order to have thorough gl