Fraudulent transfer of property to defeat the rights of a creditor can be voidable, justifying attachment under the Civil Procedure Code.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Order 43 Rule 1(Q) of the Civil Procedure Code against the fair and decretal order made in I.A.No.1 of 2020 in O.S.No.238 of 2020, dated 30.3.2021, on the file of the learned Sessions Judge, Mahila Court, Tiruchirappalli.)

This Civil Miscellaneous Appeal is directed against the order passed by the Trial Court under Order 38 Rule 5 of the Civil Procedure Code, attaching the immovable property.

2. The brief back-ground leading to the filing of the appeal is as follows:

The appellant was a tenant under the respondent herein. As he committed wilful default, proceedings have been initiated against him in R.C.O.P.No.117 of 2015. In the meanwhile, the respondent had also filed an application for fixing the fair rent in R.C.O.P.No.126 of 2015 and the learned Rent Controller has fixed the fair rent at Rs.29,700/-p.m. As the arrears are accumulated and the matter has reached its finality, for recovery of the arrears amount of Rs.16,07,900/- with interest at the rate of 12% pa. The suit has been filed in O.S.No.238 of 2020 for recovery of money. It is to be noted that the suit has been filed on 12.10.2020. At the time of filing the suit, an application for attachment before judgment is filed in I.A.No.1 of 2020. Thereafter, notice under Order 38 Rule 6-A of Civil Procedure Code also ordered on 6.11.2020 and the pre-suit notice was served on 19.9.2020. After the suit being filed and notice ordered in the above I.A, it appears that the appellant has transferred the property in question by way of settlement in favour of his own daughter on 23.11.2020. In the above circumstances, the trial Court, after hearing both sides, prima facie finding that the said transfer of property is fraudulent one effected in order to defeat the rights of the plaintiff, ordered for attachment. The same has been challenged in this Court.

3. Though various grounds have been raised in the appeal memorandum, the main contention putforth by the learned counsel for the appellant before this Court is that the procedure contemplated under Order 38 Rule 4 of Civil Procedure Code has not been followed. Therefore the attachment order passed is bad in law. It is to be noted that such a ground has never been raised in the appeal memorandum and only during the submission, it is made.

4. Be that as it may, it is the contention of the learned counsel for the respondent that the plaintiff has filed the suit for recovery of a determined amount. The suit summons has also been ordered and notice in the I.A is also ordered on 6.11.2020. After having the knowledge about the proceedings, subsequent transfer has been effected only in order to defeat the rights of the plaintiff. Therefore the order of attachment passed by the trial Court does not require any interference.

5. In the light of the above submissions, the point that arose for consideration in this appeal is as follows:

Whether the order of attachment passed by the trial Court is proper and valid in the eye of law?

6. It is an undisputed fact that the suit has been filed for recovery of a sum of Rs.16,07,900/- towards arrears of rent. It is also not disputed that RCOP proceedings have been initiated earlier as against the appellant for fixing the fair rent which has reached its finality. The only defense of the appellant before the trial Court is that as R.C.A is pending, the same has not reached finality and henced, seeking attachment of the immovable property does not arise at all. The other defense taken was to the effect that on the date of application for seeking attachment, he is not the owner of the property. It is relevant to note that the learned counsel for the respondent has also brought to the notice of this Court that the dismissal of the appeal filed in R.C.A.No.4 of 2022 by the appellate Tribunal and that the revision filed as against the same in C.R.P.No.1198 of 2023, confirming the orders of the Rent Controller. This fact is revealed from the copy of the order p