S MYLATHAL Vs. N AYYASAMY

JUDGEMENT

(1.) THE Civil Revision Petition has been preferred against the order and decreetal order dated 01.04.2008 made in E.P. No.33 of 2006 in O.S. No.60 of 2004 on the file of the Additional District Court/Fast Track Court No.IV, Tiruppur under Section 115 of C.P.C.

(2.) IT is an admitted fact that the respondents 1 and 2 herein had filed the suit in O.S. No.60 of 2004 against one Chandrasekaran/ deceased, seeking a decree for specific performance based on an agreement for sale. After the trial, the suit was decreed directing the defendants therein to refund an advance amount of Rs.6,00,000/- received from the respondents herein with 12% interest from 19.04.1999 to 01.01.2002 and subsequent interest at 6% from 02.01.2002 till the date of realisation. Pursuant to the decree, respondents 1 and 2/decree holders, filed an execution petition in E.P. No.33 of 2006 to bring the property for sale in order to realise the decree amount. After the decree, both the defendants have executed a settlement deed in favour of the third respondent who is the mother of the defendants therein. Pending disposal the first defendant/ Chandrasekaran died. After hearing both sides, by the impugned order, the court below attached the property in order to bring the property for sale to realise the decree amount. Challenging the said order, the petitioner/third party has filed this revision petition.

(3.) LEARNED counsel appearing for respondents 1 and 2 also drew the attention of this court to Section 55(4) of the Transfer of Property Act. According to the learned counsel appearing for respondents 1 and 2, the alleged transfer by way of settlement by the judgment debtors in favour of their mother is only a fraudulent transfer without getting any consideration and therefore under Section 53 of the Transfer of Property Act, the property is answerable to satisfy the decree amount. It is not in dispute that the suit for specific performance had been filed by respondents 1 and 2 in respect of the property described in the execution petition and after the trial the suit was decreed and the alternative relief to refund the advance amount with interest was decreed which reached its finality. However, the judgment debtors without satisfying the decree by making payment, simply executed the settlement deed in favour of their mother. Section 53(1) of Transfer of Property Act, 1882 reads as follows: