Executing court cannot invoke Section 53 TPA without plea and evidence; no interference if no saleable interest at attachment.

JUDGMENT

This appeal arises out of the concurrent findings rendered by the courts below in a claim petition under Order 21 Rule 58 of the Code of Civil Procedure, 1908 (CPC).

2. The brief facts necessary for the disposal of the appeal are as follows:

The appellant/claim petitioner purchased the property by Document No.224/1999 of S.R.O., Kodakkal. O.S.No.322/1998 was instituted for specific performance of a sale of an auto rickshaw. The suit was decreed granting an alternate relief for the return of the advance money. E.P.No.204/2005 was instituted for recovering of an amount of Rs.31,000/- from the 2^nd respondent herein. While pending the execution petition, the property was attached by the decree holder. Immediately thereafter, finding that the property had been attached, the appellant preferred the claim petition under Order 21 Rule 58 of the CPC for lifting of attachment. The 1^st respondent/decree holder resisted the claim petition by stating that the suit was filed in the year 1998 and the property was sold in the year 1999 and therefore, the sale is a fraudulent transfer. The executing court embarked upon an extensive enquiry without any supporting materials by the decree holder and went on to hold that the property was transferred after the filing of the suit and that the said transfer is hit by Section 53 of the Transfer of Property Act, 1882 (hereinafter referred to as the ‘Act’). The plea of the appellant that the transfer will fall within the exception mentioned under (1) of the Transfer of Property Act was rejected. Accordingly, the claim petition was dismissed. Aggrieved, the appellant preferred A.S.No.81/2008 before the Subordinate Court, Tirur. The first appellate court, by judgment dated 07.11.2012, confirmed the findings of the executing court and dismissed the appeal and hence, the present appeal.

3. Heard, Adv.N.M.Madhu – learned counsel appearing for the appellant and Adv.K.M.Firoz – learned counsel appearing for the 1^st respondent.

4. Adv.N.M.Madhu – learned counsel appearing for the appellant, submitted that the findings rendered by the courts below are perverse and liable to be interfered with by this Court in exercise of its powers under Section 100 of the CPC, 1908. The execution petition was filed only in the year 2005. As on the date of order of attachment, the judgment debtor did not have any saleable interest. In support of his decision, he relied on the decision of the Hon’ble Supreme Court in L.K.Prabhu alias L.Krishna Prabhu (Died) through Lrs. v. K.T.Mathew alias Thampan Thomas and Ors. [2025 SCC OnLine SC 2577]. He further pointed out that, there was no plea raised by the decree holder that the same is fraudulent under Section 53 of the Transfer of Property Act. Further, it is pointed out that no material evidence was adduced on behalf of the decree holder to prove that the transaction is hit by of the Transfer of Property Act.

5. Per contra, Adv.K.M.Firoz – learned counsel appearing for the respondent/decree holder, supported the concurrent findings recorded by the courts below and contended that three circumstances arose before the courts from the material pleadings. According to the learned counsel, the transaction is between close relatives. The judgment debtor had transferred the property to his own sister. He further pointed out that, an extent of 5.41 cents of property was transferred for a consideration of Rs.5,200/-, which itself shows the fraudulent nature. It is pointed out that, the executing court is justified in going into the question