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HIGH COURT OF KERALA
A. Muhamed Mustaque, SOPHY THOMAS, JJ
ABU – Appellant
Versus
SHAKEELA – Respondent
MA (EXE.) 9 2013
CPC - Execution Proceedings - Order XXI Sections [58, 97] - The court dismissed claims of bona fide purchasers in execution proceedings, affirming the priority of the original decree holder's claims over subsequent property transfers aimed to defeat those claims.
Fact of the Case:
The appellants, who were bona fide purchasers, challenged the dismissal of their claim petitions under CPC following the auction of properties that were under attachment, originally owned by the judgment debtor's family, involving matrimonial disputes for recovery of monetary and gold assets.
Finding of the Court:
The court found that the properties were transferred with the intent to defeat the claims of the first respondent and that the appellants' claims were filed post-sale, making them ineligible under CPC rules concerning objections to property attachment.
Issues: Whether the claims of the appellants as bona fide purchasers can be upheld in light of the prior attachments and transfers executed to defeat the original creditor's claims.
Ratio Decidendi: The transfers executed by the judgment debtor were intended to thwart the first wife's claims, thus rendering any subsequent claim by the appellants ineffective under the provisions of CPC that bar claims post-sale confirmation.
Final Decision: Both appeals are dismissed.
J U D G M E N T
Sophy Thomas, J.
The appellant in Mat. Appeal (Execution) No.8 of 2013 is the claim petitioner in EA No.284 of 2011 in EP No.1 of 2006 in OP No.66 of 2004 on the file of the Family Court, Thrissur, and the appellants in Mat Appeal (Execution) No.9 of 2013 are the claim petitioners in EA No.276 of 2011 in the very same EP. The appellants are impugning the common order in EA No.276 of 2011 and 284 of 2011 dated
19.01.2013.
2. The appellants would contend that they are bona fide purchasers of the schedule property, which was sold in auction by the decree holder in the above EP for realisation of the decree debt. But their claim petitions filed under Order XXI Rule 97 of CPC to exempt their property from the sale proceedings were dismissed by the Family Court, and that is under challenge.
3. The respondents 1 and 2 are husband and wife and there were matrimonial disputes between them. The 1st respondent filed OP No.66 of 2004 against her husband, i.e., the 2nd respondent, for recovery of money and gold, and she obtained a decree. In execution of that decree, she sold the properties which were under attachment in that O.P.
4. According to the appellants, they purchased the schedule properties on valid consideration without noticing of any claim or encumbrance thereon, and so that property ought not have been put in auction for realising the decree debt.
5. The 2nd respondent opted to remain absent.
6. Heard learned counsel appearing for the appellants and learned counsel appearing for the 1st respondent.
7. On going through the impugned common order, it could be seen that the properties scheduled in EA No.276 of 2011 and EA No.284 of 2011 originally belonged to Sri.Nalakath Hamsa, who is the father of the 2nd respondent. As per Ext.A3 document No.1491/2002, Sri.Hamsa transferred that property in favour of his son Basheer. Sri.Basheer transferred that property as per Ext.A4 document No.259 of 2003 dated 14.02.2003 in favour of his second wife Saleena Sri.Hamsa transferred property in favour of his son Sabeer, as per Ext.A13 document No.604 of 2005 dated 14.03.2005. Smt.Saleena transferred her property in favour of Sri.Abu and Shefeena, who are the claim petitioners in EA No.276 of 2011 as per Ext.A1 document No.2976 of 2004 dated 24.12.2004.
8. Ext.B2 agreement was executed between respondents 1 and 2 on 26.08.2002, on settling their marital disputes. As per that agreement, the 2nd respondent/husband agreed to return her 26 sovereigns of gold ornaments and an amount of Rs.18,000/-. They decided to dissolve their marriage also. Ext.B1 agreement was executed between them on 26.08.2003, when the 2nd respondent returned 10 sovereigns of gold ornaments to the 1st respondent, out of the gold and cash agreed in Ext.B2. The 2nd respondent transferred property to his second wife Saleena only on 14.02.2003 as per Ext.A4 document, fully knowing that 26 sovereigns of gold ornaments, and cash worth Rs.18,000/- were due from him to his wife/the 1st respondent as per Ext.B2 agreement dated 26.08.2002. So, obviously, that transfer was with a view to defeat the claim of the 1st respondent. Smt.Saleena transferred that property in favour of the claimants in EA No.276 of 2011 only on 24.12.2004 i.e., after that property was attached by the 1st respondent as per order in I.A.No.153 of 2004 in OP No.66 of 2004.
9. As per Ext.B2 agreement, the 2nd respondent had to clear the liabilities within one year from 26.08.2002. But, within that one year period, the 2nd respondent could return only 10 sovereigns of gold. The 1st respondent filed OP No.66 of 2004 after about two years of execution of Ext.B2 agreement. By that time, the 2nd respondent transferred his property in favour of his second wife. In all probability the second wife might have been aware of the liability of her husband towards his first wife, when Ext.A4 document was executed in her favour on 14.02.2003. But, she executed Ext.A1 Sale Deed in favour of the claim petitioners in EA No.27
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