The sale deed was upheld as valid under Section 53 of the Transfer of Property Act due to the absence of any fraud.

JUDGMENT

This appeal arises out of dismissal of a claim petition under Order

21 Rule 58 of the Code of Civil Procedure, 1908 seeking for lifting of order of attachment. The appellant is a second purchaser in respect of the claim schedule property from the judgment debtor as per registered deed No. 1276/96 of SRO, Valapattanam, on 11.04.1996. It is stated that the liabilities in tune of Rs. 1,79,000/- was made known to the appellant pursuant to the orders of attachment in O. S. No. 110 of 1996 and O.S. No. 419 of 1992. But the liabilities in respect of the decree in O.S. No. 155 of 1992 were not disclosed. It is further stated that at the time of execution of the sale deed, there was no subsisting encumbrance over the claim petition scheduled property.

1.1. The 1^st respondent/Bank resisted the claim petition by contending that the judgment debtor had sold the property after the decree was passed in O.S. No. 155 of 1992 and, therefore, he was aware of the decree and thus the transfer is fraudulent and hit by Section 23 of the Transfer of Property Act , 1882.

1.2. The Executing Court, on analysis of the evidence and also the pleadings on record, came to the conclusion that the same in favour of the claim petitioner is hit by Section 53 of Transfer of Property Act , 1882, and accordingly dismissed the claim petition. Aggrieved, the petitioner filed A.S. No. 156 of 2001 before the Addl. District Court, Thalassery, which was also dismissed by judgment dated 30.06.2009 and hence the present appeal.

2. This appeal was admitted on 19.05.2010 on the substantial questions of law as raised in the memorandum of appeal as follows;

Whether in the facts and “a.

circumstance of the case, the Courts below committed illegality in not allowing the claim petition?

b. Whether the Courts below had committed illegality in ignoring the valuable evidence adduced by the claim petitioner to prove the genuineness of Exhibit A1 Sale Deed by relying on an admission by the claim petitioner that he had some acquaintance with the 3^rd judgment debtor?

c. Whether the Courts below had committed illegality in not holding that the claim petitioner is a bonafide purchaser valid consideration without notice of the liability in favour of respondent and whether he is entitled to protection under Section 53 (i) (ii) of T.P. Act. d. Whether the Courts below are right in not lifting the attachment when the evidence on record shows that the petitioner had purchased the property before the order of attachment of the property in E.P. No. 4/97 in O.S. No. 155/92 of the Sub Court, Thalasse ry?”

3. Heard Smt. N. Sudha, the learned Counsel appearing for the appellant and Sri. R. S. Kalkura, the learned Standing Counsel appearing for the 1st respondent Bank.

4. The learned Counsel for the appellant contended that there is no warrant for the observation in the finding of the Courts below that the transaction is hit by Section 53 of the Transfer of Property Act , 1882. Admittedly, at the time of execution of the sale deed, there was no encumbrance over the property. The attachment in the present case was ordered on 12.10.1999, much after the sale deed was executed in favour of the appellant. The sale consideration shown in the deed is Rs. 3,00,000/- which was used by the judgment debtor for discharging the existing liability over the property by virtue of attachment in O.S.

No. 110 of 1996 and O.S. No. 419 of 1992.

5. On the other hand, Sri. R. S. Kalkura, the learned Standing Counsel appearing on behalf of the 1^st respondent Bank supported the concurrent findings rendered by the Courts below and contended that both the Courts have found that the transaction is hit by Section 53 of the Transfer of Property Act , 1882, and that the said fin