GEETHANJALI PAI Vs. MOHANACHANDRAN NAIR

JUDGEMENT

(1.) When a property is put to sale in execution of a money decree, is the court executing the decree empowered to decide the question as to 'whether the transfer of the said property by the original judgment debtor in favour of his daughter through a settlement deed just prior to the filing of the suit, and on getting the suit notice, is a fraudulent transfer '

(2.) O.S. No. 360 of 2002 of the Subordinate Judge's Court, Kollam was decreed on 18.02.2009 thereby allowing the respondent herein to realise an amount of Rs. 29,70,000/-from the additional 2nd defendant "to the extent she inherited from the original defendant". The said additional 2nd defendant is the petitioner herein. The original defendant is her father, who died pending the suit. The cause of action for the suit had arisen on 16.10.1997. It seems that notices were issued demanding the said amount from the original defendant on 18.01.2002 and 22.01.2002. The amounts were not paid and the demands were not met. Immediately thereafter, on 20.09.2002 a settlement deed was executed by the defendant in favour of the present petitioner in respect of the property in question.

(3.) In the suit, an attachment before judgment under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 was obtained by the plaintiff, who is the respondent herein. On the death of the defendant, the petitioner was impleaded as the additional 2nd defendant. In respect of the property in question, the attachment was subsisting all along the suit and the attachment has not been lifted. The petitioner was aware of the attachment over the property which is being claimed by her at present. There was no attempt to get the attachment lifted and the petitioner continued to suffer the attachment. After the passing of the decree, the same was put in execution through E.P. No. 21/2010 before the court below. There is another decree also pending execution before the court as against the petitioner herein. The court below has ordered the sale of the property and the rateable distribution in the two EPs. The petitioner has challenged the execution of the decree as against the property in her favour.