PRABHU L. K. Vs. K. T. MATHEW

JUDGEMENT

(1.) It is against dismissal of a claim petition, the owner of the property came up in appeal. Claim petition was preferred under Order XXI Rule 58 C.P.C. during the pendency of the suit as against 'attachment before judgment' over the property under Order XXXVIII Rule 5 C.P.C..

(2.) It is an admitted case that even prior to the 'attachment before judgment', the property was transferred by the defendant to the claimant almost seven months prior to the order of 'attachment before judgment'. The questions came up for consideration before the trial court are whether the document of transfer, Ext.A1 would stand hit by Sec. 53 of the Transfer of Property Act and whether the appellant/ claimant has got right, title and interest over the property attached. Interestingly, the extent of jurisdiction that can be exercised under Rule 58 of Order XXI C.P.C. was not taken up or considered by the trial court.

(3.) The very case advanced by the plaintiff is that the document of transfer - Ext.A1, which is the subject of 'attachment before judgment', though executed seven months prior to the attachment, being a fraudulent transfer intended to defeat and delay the creditors of the defendant, would stand voidable at the option of any of the creditors by virtue of Sec. 53 of the Transfer of Property Act. A Full Bench of this Court in Verizon Builders and Developers Ltd. v. Jyothi Susan John (2019 (1) KLT 100 (F.B.)) had laid down the legal position that it is permissible under Order XXI Rule 58 C.P.C. to go into the application of Sec. 53 of the Transfer of Property Act and to adjudicate the dispute either by way of a claim petition or objection to the attachment already effected in the trial stage or at the execution stage.