RAGHAVAN Vs. BHARGAVAN

JUDGEMENT

(1.) The revision petitioner is the 6th defendant in O. S.195/58 on the file of the Munsiff Court, Kottarakkara. A decree debt is alleged to come within the purview of Act 31 of 1958 and Act 11 of 1970. The decree holder, the father of respondents 1 and 2 and brother of 3rd respondent, in execution of the above decree brought properties for sale and purchased in court auction on 20-6-1962 and took delivery through court on 4-4-1963. Attempts made by the debtors to avoid the sale failed.

(2.) When Act 11 of 1970 came into force the petitioner filed E. A. 620/70 to set aside the sale and for recovery of property under S.20(1) of the Act with the decree holder and respondents 1 to 3 on the party array. The decree holder auction purchaser died during the pendency of the petition. The decree holder and respondents 1 to 3 had contended that the revision petitioner's petition is not maintainable, that the settlement deeds Exs-B1 and B3 executed by the decree holder in favour of the respondents 1 and 2 are bona fide transactions and the sale cannot be set aside. The execution court held that the petition is maintainable, and further held that the word "alienation" in S.20(6) of the Act will include a Gift or Will, and therefore respondents are entitled to protection under S.20(6) and therefore dismissed the petition. An appeal filed in the matter was dismissed by the Subordinate Judge of Kottarakkara on 5 4 1976. It is under these circumstances that the petitioner has approached this court under S.115 of C.P.C.

(3.) It is contended before me by Sri Vasudevan, learned counsel for the petitioner that the assumption of the courts below that the settlement deeds Exs-B1 and B3 are bona fide is wrong and unsustainable. The court sale during the pendency of Act 31 of 1958, prior and subsequent attempts made by the judgment debtors to avoid the sale all these should have been taken into consideration to determine the question of bona fides of Exs-B1 and B3. The records relating to the original suit No. 38 of 1964 and decree passed therein on the file of the Subordinate Judges court, Kottarakkara, a suit between the father of the respondents 1 and 2 and the 3rd respondent, produced before the lower appellate court, should have been taken into consideration for appreciating the circumstances under which Exs-B1 and B3 happened to be executed. It is also contended that the settlement deeds have not come into effect and they are bad for want of bona fides and consideration. It is the further case of the petitioner that the reliance placed by the execution court on the Law Lexicon in coming to the conclusion that the word "alienation" will include a demise by gift or will is unsustainable. It is strongly urged by Sri Vasudevan, learned counsel for the petitioner that the court below erred in bringing Exs-B1 and B3 within the ambit of the word "alienation" and the courts below ought to have found that respondents 1 and 2 are not bona fide alienees as per S.20 (6) of Act 11 of 1970.