A transfer made with knowledge of an attachment before judgment can be contested as fraudulent under Section 53 of the Transfer of Property Act.

ORDER :

The Civil Revision Petition is filed challenging the order passed by the Trial Court allowing the application filed by the 1st respondent seeking raising of attachment before judgment.

2. The petitioner herein filed a suit for recovery of money against the 2nd respondent. Pending suit, he filed an application in I.A.No.987 of 2014 seeking attachment before judgment of the property belonging to the 2nd respondent. In the said application, notice was ordered to the 2nd respondent. The 2nd respondent entered into sale agreement to convey the property, in respect of which attachment was sought for, in favour of power agent of the 1st respondent and his mother, Heera Begum. On acquiring knowledge about the said agreement, the petitioner's counsel issued a notice to said Heera Begum on 01.12.2014 informing her about the suit for recovery of money filed by him against the respondent in O.S.No.343 of 2014 and the pendency of the petition filed by him for attachment before judgment against the property in respect of which agreement of sale was entered by her with 2nd respondent. After receipt of said notice, the power agent of the 1st respondent, Heera Begum issued a reply to petitioner's counsel on 20.12.2014 stating that the registered sale agreement entered between her and 2nd respondent on 20.10.2014 was cancelled on 10.12.2014. Thereafter, the Trial Court passed an order of attachment before judgment in I.A.No.987 of 2014 in O.S.No.343 of 2014 on 22.02.2016. Subsequently, the 1st respondent herein filed instant application in I.A.No.506 of 2016 seeking raising of attachment on the ground that he purchased the said property from 2nd respondent on 10.12.2014 itself. Therefore, the 1st respondent prayed for raising of attachment mainly on the ground that he got the sale deed in his favour even prior to the date of attachment.

3. The Court below by impugned order allowed the application filed by the 1st respondent on the ground that he purchased the property even prior to the attachment and hence, raised the attachment. In the case on hand as narrated above, when pendency of the suit as well as petition for attachment before judgment were brought to the notice of 1st respondent's power agent and his mother, Heera Begum, by way of legal notice issued by petitioner's counsel, she sent a reply on 20.12.2014 stating that agreement of sale entered by her with 2nd respondent was cancelled on 10.12.2014. From the acknowledgement card filed in the typed set of papers, it is clear that the above notice was received by power agent of 1st respondent on 04.12.2014. Subsequently, the 1st respondent herein filed the present claim petition seeking raising of attachment on the ground that he purchased the property on 10.12.2014 itself.

4. Assailing the impugned order, the learned counsel for the petitioner submitted that the sale deed executed in favour of 1st respondent by the 2nd respondent on 10.12.2014 is a fraudulent transfer hit by Section 53 of Transfer of Property Act and hence, the petitioner is entitled to ignore the same. In support of his contentions, the learned counsel relied on the judgment of this Court in the case of Kalyaniammal Vs Punjab National Bank by its Manager, Tirunelveli Town and Others reported in AIR 1992 Mad 176. The learned counsel submitted that the Trial Court, without considering the effect of Section 53 of Transfer of Property Act, on an erroneous view, allowed the petition for raising of attachment on the ground that 1st respondent purchased the property even prior to the attachment order. It is the submission of the learned counsel that 1st respondent purchased the suit property having full notice of the suit and pendency of the attachment before judgment application and hence, he cannot be treated as a bonafide purchaser.

5. The learned counsel for the 1st respondent by taking this Court to the order passed by the Trial Court submitted that the Trial Court rightly came to the conclusion that purchase made by t