K S E BOARD Vs. K PADMAJA

JUDGEMENT

(1.) THE unserved second respondent is the judgment debtor. THE successful claim petitioner, the first respondent herein, has been served by affixture. This appeal is against the order, by which, the claim petition filed by the first respondent herein was allowed. Since the E. F. A. is of the year of 1997, it requires to be expedited. It is unnecessary to await return of notice to the second respondent, the judgment debtor in the proceedings. Hence notice to second respondent in E. F. A. is dispensed with. THE appellant filed O. S. No. 152/88 before the Sub Court, Thrissur for recovery of money on the strength of pro-note executed on 25. 01. 83 by the second respondent. THE property in relation to which this appeal relates, stood originally in the name of the said second respondent, who was the defendant in the suit. He is shown to have executed deed No. 573/98 of Kunnamkulam Sub Registrar in favour of one Kochouseph , who in turn executed Ext. A1 on 01. 05. 1984 to the first respondent, who is none other than the wife of the defendant. That property was attached on 30. 03. 1988. THEreafter, during the course of execution, initiated in 1990, the first respondent, wife of the defendant/judgment debtor filed E. A. 166/91 as a claim petition under order 21 Rule 58 of the C. P. Code. That application was filed by the decree holder contending that the transfer by the defendant- decree holder to Kochouseph was a sham tansaction and that Kochouseph has merely shown Ext. A1 as a conveyance which again is a sham transaction and that title to the property in question never changed from the defendant/judgment debtor. In support of his contentions the decree holder/appellant gave evidence before the court below as RW1 in opposition to the claim petition. THE claim petitioner/first respondent merely produced Ext. A1 assigning deed by Kochouseph in his favour. No other evidence was adduced to answer the plea of the decree holder that the transaction by her husband to Kochouseph and later to her were sham and intended to defraud the creditor and defeat the liability owing to the pro-note, that arose by its execution in 1983. Having regard to what is aforesaid, the court below committed a serious error in allowing the claim petition by merely stating that A1 assignment deed is on 1. 7. 1984 and while the attachment is only on 30. 3. 1988. For the aforesaid reasons, this appeal is allowed. THE impugned order is set aside and E. A. No. 166/91 is dismissed with costs here and in the court below. . .