CHUMAR Vs. ALIMA

JUDGEMENT

(1.) Appellant is the decree holder in OS 32 of 1981 on the file of the Additional Sub Court, Parur. The appeal is against an order allowing a claim application, EA 750 of 1986, filed by the first respondent in the appeal. Respondents 2 and 3 are the judgment-debtors in the suit and counter petitioners 2 and 3 in EA 750 of 1986. The first respondent-claimant in EA 750 of 1986, is the wife of the second respondent and mother of the third respondent.

(2.) The suit, OS 32 of 1981, was one filed by the appellant for recovery of amounts due to him with interest from respondents 2 and 3 based upon a transaction of loan dated 16-1-1978. The suit was decreed as prayed for on 20-10-1982. Appellant has filed EP 203 of 1985 on 23-9-1985 to execute the decree. In the Execution Petition, the property in question was attached on 1-10-1985 and the attachment was actually effected on 26-11-1985. The claim application disposed of by the impugned order was filed on 11-11-1986 claiming that the judgment-debtors have no right in the property and that the first respondent is the sole owner of the property on the basis of Ext. A1 assignment deed dated 25-5-1973.

(3.) In the claim application, first respondent has alleged that the property under attachment was assigned in her favour as per Ext. A1 assignment deed for valid consideration and that she is in possession and enjoyment of the same. The house in the property belongs to her and she came to know about the attachment and proclamation for sale only when notice of sale was effected by affixture on the property. First respondent has specifically asserted that respondents 2 and 3 have no right or interest in the property subsisting on the date of attachment. Appellant resisted the claim application contending that the application is lacking in bona fides and is highly belated. It was further contended that Ext. A1 sale deed is sham and nominal and is one executed without consideration. The property is even now in the possession of the judgment-debtors. The alleged transfer, in any event, is in fraud of the creditors and as such voidable. The averment in the claim petition that first respondent came to know about the attachment only when notice of sale was affixed on the property was also denied stating that the first respondent had occasion to know about the attachment even earlier. It was submitted that the above assertion is a mere assertion made with a view to file the application at a very belated stage of the execution proceedings to prolong and protract the proceedings. In the light of the contentions raised in the counter-affidavit appellant has prayed for dismissing the application finding that it is one filed belatedly without any bona fides and merit.