Dismissed

K.S. Rajesh v. P.P. George

Kerala HC5 Jan 2016RSA/1327/2015

Case brief

AI extract

What is this about?

In this regular second appeal, the High Court dismissed the appeal against orders confirming the dismissal of an execution petition and a stay application. The court held that the transfer of an attached right by a judgment debtor to his children after the decree date was void under Section 64 CPC, as it was likely an attempt to defeat the decree execution.

What did the court decide?

The second appeal was dismissed; all interlocutory applications in the appeal were closed with no further orders.

K.S. Rajesh Vs P.P. George — Execution and Attachment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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TUESDAY, THE 5TH DAY OF JANUARY 2016/15TH POUSHA, 1937

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RSA.No. 1327 of 2015 (G)

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AGAINST THE JUDGMENT & DECREE IN AS 10/2014 of DISTRICT COURT,THODUPUZHA DATED 30-06-2014

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AGAINST THE ORDER IN E.A.NO.292/2013 IN E.P.NO.32/2011 IN OS 52/1999 of SUB COURT,THODUPUZHA DATED 06-11-2013

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APPELLANTS/RESPONDENTS/PLAINTIFFS:

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1. K.S. RAJESH, AGED 32 YEARS, S/O. SIVARAMAN NAIR, PARAYAKKUNNEL HOUSE PADINJAREKODIKULAM, THODUPUZHA-685584.

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2. K.S.RAMESH, AGED 26 YEARS, S/O. SIVARAMAN NAIR, PARAYAKKUNNEL HOUSE PADINJAREKODIKULAM, THODUPUZHA-685584.

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BY ADVS.SRI.D.NARENDRANATH SRI.M.HARISHARMA

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RESPONDENTS/APPELANTS/CLAIM PETITIONERS:

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1. P.P. GEORGE S/O. PAILY, PALLIKKUNNEL HOUSE, THENNATHUR KARA KODIKKULAM VILLAGE, THODUPUZHA TALUK, PIN-685584.

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2. SIVARAMAN NAIR

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S/O. RAMAN NAIR, PARAYAKUNNEL HOUSE, PADINJAREKODIKULAM THODUPUZHA, PIN-685 584.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.B.SURESH KUMAR, J.

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R.S.A.No.1327 of 2015

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Dated this the 5^th day of January, 2016

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J U D G M E N T

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~~~~~~~~~~~

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The order on E.A.No.292 of 2013 in E.P.No.32 of 2011 in O.S.No.52 of 1999 on the file of the Sub Court, Thodupuzha as confirmed in appeal is under challenge in this second appeal.

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The first respondent instituted O.S.No.52 of 1999 for realisation of money from the second respondent. The 1/3^rd undivided right held by the second respondent over an item of property at the relevant time was attached by the first respondent before judgment in the said suit on 9.4.1999. Later, the suit was decreed. Thereupon, the first respondent filed E.P.No.32 of 2011 to execute the decree obtained by him in the said suit. In the execution petition, the appellants who are none other than the children of the second respondent filed E.A.No.292 of 2013 stating that the attached property has been purchased by them for consideration and therefore the said property is not liable to be proceeded against for execution of

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R.S.A.No.1327/2015

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-2-

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the decree. According to them, they have purchased the property including the 1/3^rd undivided right of the second respondent on 2.11.2004. The trial court dismissed E.A.No.292 of 2013 and the decision therein has been confirmed in appeal by the appellate court. The appellants who are aggrieved by the concurrent decisions against them have thus come up in this second appeal.

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Heard the learned counsel for the appellants.

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As noticed above, the attachment was obtained

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by the first respondent on 9.4.1999. The suit was decreed later in the year 2000. The appellants have purchased the property long thereafter on 2.11.2004. As such, in the light of the provision contained in Section 64 of the Code of Civil Procedure, the transfer of the attached property by the second respondent

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in favour of the appellants is void as against all claims enforceable under the attachment. Further, as noted above, the appellants are none other than the children of the second respondent, who is the judgment debtor. As such, the courts below cannot be found fault with for having taken the view that the purchase of the rights of the judgment debtor over the

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R.S.A.No.1327/2015

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-3-

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property by the appellants after the decree is with a view to defeat the execution of the decree obtained by the first respondent.

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In the said view of the matter, I do not find any merit in the second appeal and the same is accordingly dismissed. All the interlocutory applications in the appeal are closed.

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Sd/- P.B.SURESH KUMAR JUDGE

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ps/6/1/16

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//True copy//

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PA to Judge

K.S. Rajesh v. P.P. George

Case brief

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K.S. Rajesh v. P.P. George

Case brief

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