OUSEPH Vs. ANNAMMA

JUDGEMENT

(1.) STRANGER s. The learned Munsiff, however, considered the petition as an objection by a party under S. 40 of the Travancore Civil Procedure Code. Considering the objection as one under S. 40, the learned Munsiff found that Ext. 1 which is the basis of the objection was a sham transaction and dismissed the objection. Against the order of the learned Munsiff, a Civil Miscellaneous Appeal was filed in the District Court of Kottayam. That was C. M. A. No. 63 of 1123 of the kottayam District Court. The learned judge in considering that C. M. A. did not agree with the Munsiff that Ext. 1 was a sham transaction. The learned judge found, believing the evidence of the witnesses examined in the case, that the properties to whose attachment objection was raised by the second defendant were in her possession and on the view that the only question for consideration in a claim is one of possession, the learned judge upheld the objection and allowed the Civil Miscellaneous Appeal. This Second appeal is preferred by the plaintiff decree-holder against the order passed by the learned District Judge.

(2.) THE view taken by the learned Munsiff that Ext. 1 is a sham transaction is erroneous and cannot be upheld because even according to the plaintiff decree-holder, Ext. 1 was an effective transaction and it did operate to create some interest in favour of defendants 2 and 3 and it was on that basis that defendants 2 and 3 were impleaded in the suit as persons having some interest in the hypotheca which was sought to be sold. THE transaction will be a sham only if it is of no effect at all. A transaction which is in fraud of creditors is a real transaction, not a sham transaction. THE view of the learned District Judge that in this case the only question to be considered is one of possession is also erroneous. Unlike the case of a claim by a stranger to the proceedings under 0. 21, R. 56, where the question really is one of possession by the claimant on his own account and not on behalf of the judgment-debtor, wherein an original suit will lie by the aggrieved party to establish the right that he claimed, in the case of an objection by a party to the proceedings to the attachment of the properties, that objection is to be regarded as a question arising for consideration under S. 40 of the Civil procedure Code and in that case not merely the question of possession but the question of title also must be adjudicated and decided and that is why in the case of an objection by a party against the order passed by the first court there will be an appeal and a second appeal. It is not known how regarded as an order under S. 40, a Civil Miscellaneous Appeal was filed before the District court. THE proper procedure would have been to file an appeal. But that irregularity of procedure is immaterial in the present case as no objection is taken by any party based on that circumstance and no question of jurisdiction arises.