T.V. ANIL KUMAR Vs. JAMES THOMAS

JUDGEMENT

(1.) The claim petitioner in E.A.No.518 of 2008 in E.P.No.159 of 2008 in O.S.No.90 of 1997 on the file of the Sub Court, Manjery is the appellant herein. The first respondent herein is the decree holder in O.S.No.90/1997 which was filed by him on 20.06.1997 against the father of the appellant who is the second respondent herein for realisation of 2,00,000/ - with interest and cost. The first respondent herein filed I.A.No.1469/1997 for attachment, before judgment along with suit and it was posted to 25.11.1997 for appearance of parties and the second respondent herein who was sole defendant in the suit appeared but he did not file any objection. So on 06.12.1997 an interim conditional attachment was passed attaching the property and also to show cause, why he should not furnish security for

(2.) ,75,000/ -. The case was posted to 15.09.1998. On that day also no objection was filed and the interim attachment was made absolute on that day. According to the claim petitioner, the document of sale was executed by second respondent in favour of his brother Murali on 05.12.1997 and it was registered on 08.12.1997 as per Ext.A1 sale deed and thereafter the property was sold in favour of the claim petitioner by his brother as per Ext.A2 sale deed No.1199/2000, dated 14.03.2000 and he was not aware of the attachment. The property was sold even prior to the attachment and the decree holder has no right over the same. So he filed E.A.No.518/2008 under order 21, Rule 58 of the Code of Civil Procedure for lifting the attachment and release the property from attachment and release the property in his favour. 2. The second respondent remained absent. First respondent/decree holder filed counter stating that the application is not maintainable. The application was filed through the mother as power of attorney holder and the property was sold by the father in favour of the son knowing that attachment, application has been filed and the property is within the jurisdiction of Nilambur Sub Registrar's office, but the document of sale was registered in Malappuram Registrars office and it is a fraudulent transfer made by the father without any consideration to defeat the right of the decree holder. The property was not in his possession. They were aware of the attachment and the allegation that they came to know of the attachment only when the decree holder came and told about the same is not correct. So it is only a fraudulent transfer and the claim petitioner did not get any right in the property. So he prayed for dismissal of the application.

(3.) The brother of the claim petitioner was examined as PW1 and Exts.A1 to A3 were marked on behalf of the claimant and Ext.B1 was marked from the side of the respondent. After considering the evidence on record, the court below found that it is a fraudulent transfer and dismissed the application. Aggrieved by the same, the present appeal has been preferred by the appellant/claim petitioner before the court below.