Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943 OP(C).No.422 OF 2021 I.A.NO.1/2020 IN OS 52/2020 OF SUB COURT, MAVELIKKARA PETITIONER/PETITIONER/PLAINTIFF: USHA VISWANATHAN, AGED 53 YEARS W/O. VISWANATHAN PILLAI, RESIDING AT USHAS, KATTANAM VILLAGE, BHARANIKKAVU THEKKUM MURI, MAVELIKKARA TALUK, KATTANAM P.O., ALAPPUZHA DISTRICT, PIN-690 503. BY ADV. SRI.A.JANI(KOLLAM) RESPONDENT/RESPONDENT/DEFENDANT: PRADEEP KUMAR, AGED 40 YEARS S/O. RAVEENDRAN NAIR, RESIDING AT PARAMESWARATH, THAMARAKKULAM VILLAGE, PEROORKARAZHMURI, MAVELIKKARA TALUK, KATTANAM P.O., ALAPPUZHA DISTRICT, PIN-690 503. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25-032021, THE COURT ON 31-03-2021 DELIVERED THE FOLLOWING: :-2-: Dated this the 31st day of March, 2021
J U D G M E N T
The substantial relief sought by the petitioner in this original petition is for issue of a direction to the court below to consider and dispose of Ext.P3 I.A.No.1/2020 filed by her for
attachment of respondent's property before judgment
in the suit.
2. In the nature of relief sought in the original petition, issue of notice to the respondent was found unnecessary and accordingly dispensed with.
3. The suit was filed by the petitioner for recovery of money from the respondent on
30.11.2020. Ext.P3 application for attachment of property was also filed along with the suit. The court below not being inclined to order conditional attachment, ordered notice to the respondent. By :-3-: the time when the notice was served on the respondent, he transferred the property and after appearance in the suit, he objected to Ext.P3 and contended that the property was not liable to be attached in as much as he had already parted with the property. Subsequently he remained ex parte in the suit itself.
4. The grievance expressed by the petitioner in this original petition is that the delay and inaction on the part of the court below in passing expeditious orders on Ext.P3, has caused prejudice
to the petitioner. This original petition was therefore filed for issue of a direction to the court below for urgent consideration and final disposal of Ext.P3 petition for attachment.
5. I heard the learned counsel for the petitioner.
6. It is submitted that the entire conduct of :-4-: the respondent in the suit sufficiently discloses that the transfer of property made after the suit is fraudulent and consequentially voidable at the
option of the petitioner/creditor. The learned counsel relying on a Full Bench decision reported in Verizon Builders and Developers Ltd. (M/s.) and another v. Jyothi Susan John & ors. (2018(5) KHC 821), submits that a creditor can assail a fraudulent transfer and avoid it in a proceeding under Order XXXVIII Rule 8 CPC, otherwise than by a suit under Section 53 of the Transfer of Property Act, 1882 (hereinafter for short, 'the TP Act').
7. The argument of the learned counsel for the
petitioner does not appear to be sound. In my view, the law laid down in the Full Bench decision does not support the contention canvassed by the learned counsel.
8. Once the property is transferred by the :-5-:
debtor/defendant in the suit, prior to an order of attachment being passed in the suit, either before or after the institution of the suit, no plea made for attachment before judgment by the plaintiff,
could then sustain in the proceedings. Order
XXXVIII Rule 5 of CPC does not empower the court to
order attachment before judgment in the aforesaid
situation for legal reasons. The conditions in
Order 38 Rule 5(a) and (b) namely, “about to
dispose of” or “about to remove the whole or part of his property”, no longer apply when the property was already sold prior to an order of attachment being passed because the property has ceased to be “his” as the respondent has already parted with the
land in favour of a third party. Further, Order
XXXVIII Rule 10 of the CPC also prohibits prior interest of a person, who is not a party to the suit being attached. :-6-:
9. The question that arises then is, what is
the remedy open to the aggrieved petitioner/the creditor in the suit. Under Section 53 of the TP Act, the transfer made by the debtor to defeat his creditor is voidable at the option of the creditor and according to the said provision, institution of a suit may be necessary for avoiding the transfer as fraudulent. Once a decree invalidating the transfer is obtained against the transferee, the
creditor may apply for sale of the property transferred, in execution of the decree against the debtor. The Full Bench decision aforesaid only said that in a claim petition brought by the transferee, the creditor could very well assail the validity of the transfer of property without having to file a suit under Section 53 of the TP Act. That situation comes into play only when a creditor has already obtained an order of attachment before judgment and
:-7-: has an opportunity to seek to sustain the order. The factual position in the instant case, therefore, is no comparison for the facts decided by the Full Bench. In the result, the original petition is disposed of directing the court below to take up Ext.P3 I.A.No.1/2020 for urgent consideration and pass necessary orders after hearing the parties, in accordance with law. It is made clear that if the petitioner applies for amendment of the suit for adding a relief under Section 53 of the TP Act, it
may be considered in accordance with law after hearing parties on either side. All pending interlocutory applications are closed. Sd/- T.V.ANILKUMAR JUDGE ami/ :-8-: APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE SUIT IN O.S.NO.52 OF 2020 PREFERRED BEFORE SUB COURT, MAVELIKKARA DATED 30.11.2020. EXHIBIT P2 TRUE COPY OF LEGAL NOTICE ISSUED BY COUNSEL FOR ORIGINAL PETITIONER TO RESPONDENT DATED 25.11.2020. EXHIBIT P3 TRUE COPY OF I.A.NO.1 OF 2020 SUBMITTD
IN EXHIBIT P1 IN O.S.NO.52 OF 2020 PREFERRED BEFORE ADDITIONAL SUB COURT, MAVELIKKARA UNDER ORDER XXXVIII RULE 5 OF C.P.C. DATED 30.11.2020. EXHIBIT P4 TRUE COPY OF OBJECTION TO EXHIBIT P3 SUBMITTED BY RESPONDENT IN O.S.NO.52 OF 2020 PREFERRED BEFORE ADDITIONAL SUB COURT, MAVELIKKARA DATED 8.1.2021. EXHIBIT P5 TRUE COPY OF ORDER IN NOTICE ISSUED BY COURT MAVELIKKARA IN EXHIBIT P3 APPLICATION IN I.A.NO.1 OF 2020 IN O.S.NO.52 OF 2020 DATED 1.12.2020.