Shaffique, J.

RFA No.529/2015 has been filed by the plaintiff in OS

No.28/2014 challenging an order passed in a claim petition filed

as IA 838/2014. The claim petition has been filed by the first

respondent herein under Order XXXVIII Rule 8 of the Code of Civil

Procedure (for short 'CPC'). The Court below allowed the said

application on a finding that the property under attachment was

transferred in the name of the claimant/1^st respondent by a

registered sale deed dated 4/7/2014 prior to the order of

attachment. In fact the plaintiff contended that the transfer was

fraudulent and hit by S.53 of the Transfer of Property Act (for

short 'TP Act'). But placing reliance on the judgment in Rajan @

v. Rajan Gopinathan v. Dr.D.Jayashree Nayar and another

(2010 (1) KLT 142), it was held that adjudication of fraudulent

transfer can be made only during execution proceedings and

accordingly the claim petition was allowed vacating the order of

attachment.

2.

When the above matter came up for hearing before a

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Division Bench of this Court, the matter was referred to a Full

Bench doubting the judgment in Rajan's case (supra) as per

reference order dated 21/6/2016. It was observed that O.XXXVIII

Rule 8 CPC is sufficient to adjudicate a claim in a property sought

to be attached before judgment.

3.

In RFA No. 777/2015 also, a similar question has arisen

for consideration. In that case also, the plaintiff had preferred the

appeal challenging order dated 1/8/2015 in IA 914/2014 in OS

No.18/2014 of the Sub Court, Alappuzha. IA No.914/2014 was

filed under Order XXXVIII Rule 8 for releasing the attachment.

The application is filed by the 3^rd respondent herein inter alia

claiming right in respect of the property. It was contended that

the order of attachment was dated 9/4/2014 and it was made

absolute on 23/5/2014. The property was purchased by the

petitioner/3^rd respondent as per document No.2736/12 for valid

consideration and that he is in possession of the property. Court

below having referred to the judgment in Rajan's case (supra)

observed that in so far as the claim petitioner had purchased the

property prior to the date of attachment, the plaintiff's contention

regarding fraudulent transfer of the property u/s 53 of the TP Act

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need not be considered at the original side and accordingly the

application was allowed and the attachment was vacated. When

the above matter came up for hearing before the Division Bench,

doubting the judgment in Rajan's case (supra), the matter was

referred to be considered by a Larger Bench.

4.

In the light of the aforesaid two reference orders, these

two cases had been placed before us.

5.

The counsel for the 1^st respondent in RFA No.529/2015

has filed IA No. 1091/2018 seeking for dismissal of the appeal on

the ground that decree has been passed in OS No.28/2014. We

do not think that such an application can be entertained as a

question of law involving divergent views had been referred to

this Court, which requires to be answered. If the attachment of

property can be sustained, there is no necessity for a further

attachment if a decree is passed in favour of the plaintiff.

6.

First let us examine the manner in which Rajan's

case (supra) has been decided. It was held that in so far as the

purpose of attachment before judgment is distinct and different

from attachment in execution, the attachment before judgment

would cease when the suit is dismissed on merits or if it is

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dismissed for default. The attachment before judgment will not

revive on setting aside the order of dismissal of the suit for

default and on restoration of the suit. It is observed that O.XXI

R.58 (2) provides for determination of all questions including

question relating to right, title or interest in the property

attached, arising between the parties or their representatives and

it is further qualified by the expression “relevant to the

adjudication of the claim or objection”. Paragraphs