PEGADAN ABDUSALIM Vs. KANNANTHODI BUSHRA

JUDGEMENT

(1.) The wife of judgment debtor came up with a claim petition under Order XXI Rule 58 C.P.C. in E.A. No. 62/2018 in E.P. No. 172/2013 during the course of execution of a decree dtd. 29/08/2013 in O.S. No. 360/2012 for recovery of an amount of Rs.15.00 lakhs with interest, against the attachment of 50.5 cents by order dtd. 15/12/2012. Her claim is based on a decree of the Family Court in O.P. No. 1042/2012 (renumbered as O.P. No. 901/2013 of the Family Court, Malappuram) in her favour, for realization of gold ornaments alleged to have been given at the time of her marriage and also claiming maintenance, in which, her husband remained ex parte. The abovesaid property was sold in execution of the said ex parte decree in E.P. No. 39/2015 dtd. 14/07/2015 and bid the property by her and obtained delivery on 26/10/2015, hence the claim under Order XXI Rule 58 C.P.C. It was allowed by the execution court, against which the decree holder in O.S. No. 360/2012 came up.

(2.) Earlier, the husband/judgment debtor approached the Insolvency Court by maintaining a debtor petition, I.P. No. 1/2013, but subsequently he remained absent and not proceeded with the insolvency petition. Consequently, the insolvency petition was dismissed for non-prosecution on 23/1/2018, after the passing of ex parte decree in favour of his wife for recovery of gold ornaments and maintenance and the sale of the property in execution on 14/07/2015, confirmation of sale on 15/09/2015 and delivery effected on 26/10/2015, which according to the decree holder is a collusive decree obtained by the wife in collusion with her husband. It is submitted that the insolvency proceedings were initiated only to camouflage and facilitate the passing of the said collusive decree and to cause sale of the property in the name of his wife fradulently and to defraud the creditor, the decree holder herein. It is further submitted that he was a party respondent in the insolvency proceedings and the wife of the judgment debtor was also a party respondent (37 respondent) in the said proceedings and hence, the execution court is not justified in allowing the claim petition overlooking the fraud actively played by the judgment debtor with his wife.

(3.) Indisputably, the marriage relationship between the judgment debtor and the claimant is still subsisting. None of them approached any competent court either to get a decree of divorce or judicial separation. Both of them are still living as husband and wife. If that be so, the wife has to explain what actually prompted her to institute a suit against her husband, that too, without a cause of action for recovery of gold ornaments, if any given at the time of marriage and also for maintenance. The husband remained ex parte so as to enable his wife to translate her claim into a decree. This would show the collusive nature of the suit by the wife of judgment debtor, wherein the husband/judgment debtor conveniently remained absent and caused to pass an ex parte decree. It was put in execution and the only immovable property belonged to him caused to be sold in court auction at the instance of his wife and got it in her name in court sale. By its very nature, it is clear that it is a collusive decree and the judgment debtor remained ex parte so as to facilitate passing of a decree in favour of his wife and under that decree, the property was sold in execution in favour of his wife. It appears that all these were done at the instance of husband, who remained ex parte all along till the property was transferred in court sale in the name of his wife. In order to facilitate all these fraudulent acts, he had adopted yet another device by way of an insolvency petition as against the decree holder and various creditors, wherein his wife was also made as a co-respondent/creditor. It was maintained before the Insolvency Court till the passing of a decree in the collusive suit and its after effect by way of sale of immovable property in favour of his wife and thereafter remained absent and caused to dismiss the same for non-prosecution/default. The entire facts of the case would clearly reveal the way in which the judgment debtor had played fraud on the decree holder and other creditors by resorting to a fraudulent suit at the instance of his wife and an insolvency petition, which was later on not proceeded with causing its dismissal for non-prosecution.