PRAVEEN SHENOI Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) These appeals are filed against orders dismissing applications filed under Order XXXVII R. 8 read with S. 151 C.P.C. The plaintiff in O.S. No. 474 of 2009 of the Additional Sub Court, Irinjalakuda obtained an order of attachment before judgment on 15.11.2009. The appellants filed two claim petitions on 4.10.2010 pleading that they are the purchasers of the property under attachment as per two sale deeds executed by the defendants on 18.7.2009. The suit was decreed on 29.10.2010 and the claim petitions were dismissed on 22.2.2012 holding that the claim petitions are not maintainable in view of the decree passed in the suit. The dismissal of the claim petitions were without prejudice to the claim petitioners filing such petitions before the executing court.

(2.) The learned counsel for the appellants argued that though Joy v. Cherukutty,1991 1 KerLT 393 may be authority for the proposition that an attachment cannot be lifted in the trial side once the suit is decreed, the applications which were filed as claim petitions were pending on the date of decree and therefore, they ought to have been treated as applications filed in execution. Reference was made to the decision of the Andhra Pradesh High Court in J. Rama Murthy v. S.C. General M. & C. Agents, 1989 AIR(AP) 58 He also argued that in Rajan v. Jayashree, 2010 1 KerLT 142, distinction has been drawn as to the quality of adjudication when request for lifting attachment is made on the trial side and claim petitions are filed in execution.

(3.) Per contra, the learned counsel for the decree holder bank argued that the assignments held out by the appellants are transfers in defraud of creditors and even if the applications were to be entertained, adjudication on that issue had also to be had, because by the time the applications were taken up for consideration finally, the suit stood decreed.