The absence of necessary averments in an attachment application under Section 53 of the TP Act leads to dismissal of the appeal regarding the attachment of property.

J U D G M E N T

1. This appeal is filed by the Decree Holder challenging the Order by which the attachment of the scheduled property passed in the Execution Petition was lifted by the Execution Court.

2. In execution of the decree, the scheduled property was attached, alleging that the property belonged to the 1^st judgment debtor. The 1^st judgment debtor appeared and produced the EC showing that even before the filing of EA No.355/2023 for attachment, the property was settled by the 1^st judgment debtor in favour of her husband, Alexander P.F., and hence, as on the date of the Order of the attachment on 15.07.2023, the property did not belong to the 1^st judgment debtor. The Execution Court found that even though the attachment was ordered on 15.07.2023, the Decree Holder did not take any steps to effect the attachment, and that it is clear from the document produced by the 1^st judgment debtor that there is no property in the name of the Decree Holder as scheduled.

3. The contention of the learned counsel for the appellant, Sri.

Joseph K.L., is that the appellant/Decree Holder is entitled to invoke Section 53 of the Transfer of Property Act, 1882 (for short, ‘the TP Act’) as the transfer is a fraudulent one to defeat the claim of the Decree Holder/creditor to a near relation and that too, without consideration.

4. The contention of the learned Counsel for the respondent is that EA No.355/2023 for attachment was filed alleging that the property belonged to the 1^st judgment debtor and the Execution Court rightly dismissed the E.A., finding that the scheduled property does not belong to the 1^st judgment debtor.

5. Of course, the Decree Holder can rest her claim under Section 53 of the TP Act. But in such a case, there should be necessary averments in the application to invoke of the TP Act. In the present application for attachment, the only averment is that the property belongs to the 1^st judgment debtor. The necessary averments for invoking of the TP Act are not there in the present application. Hence, I do not find any ground or reason to interfere with the impugned order.

6. Accordingly, the appeal is dismissed, but giving liberty to the appellant to file a proper Application for attachment of the very same property, invoking Section 53 of the TP Act.