Partly allowed

Harikrishnan v. Rajamma Geetha

Kerala HC6 Jul 2018Ex.SA/18/2008

Case brief

AI extract

What is this about?

In an execution second appeal, the Kerala High Court allowed the appeal and remanded the matter to the trial court. The court held that the lower courts failed to properly consider whether a post-attachment sale deed, ante-dated to appear pre-attachment, was a collusive device to defeat creditors under Section 53 of the Transfer of Property Act.

What did the court decide?

Second appeal allowed. Order of execution court and first appellate court set aside. Matter remanded to trial court for fresh consideration with liberty to adduce evidence.

Harikrishnan Vs Rajamma Geetha — Execution and Attachment | Kerala HC (2018)

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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.SOMARAJAN

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FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940

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Ex.SA.No. 18 of 2008

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AGAINST THE ORDER/JUDGMENT IN AS 106/2005 of III ADDL. DISTRICT COURT,

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TRIVANDRUM DATED 31-07-2007

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AGAINST THE ORDER/JUDGMENT IN E.A.NO.125 OF 2003 IN E.P.NO.71 OF 2002 IN OS NO.51/2002 of SUB COURT,NEYYATTINKARA DATED 23.2.2005

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APPELLANT/APPELLANT IN IST APPEAL/DECREE HOLDER:

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HARIKRISHNAN S/O. MADHAVAN NAIR, AMBADIYIL PULLUVILA, KARUMKULAM DESOM, KARUMKULAM PAKUTHY, NEYYATTINKARA TALUK,, THIRUVANANTHAPURAM DISTRICT.

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BY ADVS.SRI.S.SURESH

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SRI.G.SUDHEER

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RESPONDENTS/RESPONDENTS/CLAIM PETITIONER AND JUDGMENT DEBTOR:

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RAJAMMA GEETHA, ASWATHI,

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PALLICHAL DESOM, FROM SURABHI NIVAS,, VEDIVACHANKOVIL,

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PALLICHAL DESOM, PALLICHAL VILLAGE, NEYYATTINKARA TALUK,

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THIRUVANANTHAPURAM, DISTRICT.

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K.R. HIRANMAYI DEVI, WIFE OF VELAPPAN ASARI,

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K.S.R.T.C. WORKERS CO-OPERATIVE SOCIETY T.133,

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THAMPANOOR, THIRUVANANTHAPURAM.

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R2 BY ADV. SRI.T.GOPALAKRISHNAN

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R1 BY ADV. SRI.S.JAMES VINCENT

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THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.07.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.Somarajan, J.

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Ex.S.A. No.18 of 2008

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Dated this the 6^th day of July, 2018

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JUDGMENT

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What is challenged in this appeal by the appellant decree holder is the order passed under Order XX! Rule 58 of the Code of Civil Procedure by the execution court in E.A.No.125 of 2003 in E.P.No.71 of 2002 in O.S.No.51 of 2002 on the file of the Sub

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Court, Neyyattinkara, which was confirmed in appeal, A.S.No.106 of 2005, by the III Additional District Judge, Thiruvananthapuram by judgment dated 31.7.2007.

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The decree holder obtained a decree for money wherein decree was granted to recover the amount charged upon the property scheduled in the plaint which admittedly belonged to the judgment debtor (second respondent in the second appeal) at that time. The decree was put in execution. In the mean while, the judgment debtor transferred the said

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Ex.S.A. No.18 of 2008

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:: 2 ::

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property to the petitioner in E.A. No.125 of 2003 (respondent No.1 in the second appeal). Thereon respondent No.1 filed a claim petition in E.A.No.125 of 2003 for lifting the attachment over the property. It was objected by the decree holder mainly on the reason that the sale deed was executed subsequent to the attachment but in order to appear that it was executed earlier to the attachment, an ante-date, i.e. 11.4.2002, was entered into the document as date of execution but the document was registered only on 17.4.2002. The attachment application was moved on 8.4.2002 and it was heard and allowed on 11.4.2002 and communicated to the concerned Sub Registry Office on 12.4.2002. It is thereafter on 17.4.2002 the sale deed in favour of respondent No.1 was produced before the Sub Registrar for its registration under the premise that it is a document executed on 11.4.2002 and got registered.

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It is now settled that the validity of the document would start from the date of execution of the document and not from

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Ex.S.A. No.18 of 2008

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:: 3 ::

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the date of its registration. In the factual background now available it can be seen that the registration of the said document on 18.4.2002 is really in unusual and the party who claims right over it has to disclose and establish under what circumstances it was not registered on the date of its execution and why the registration was delayed up to the date on which it was registered especially in the present background under which a notice of attachment before judgment was communicated to the Sub Registry Office as well as to the person concerned before its date of registration. The submission made by the appellant is that it is really a device created by the judgment debtor in collusion with the purchaser so as to appear that the sale was effected even prior to the attachment. The pleading raised in the objection that the said document was executed in order to defeat the claim of the creditor, the decree holder, and it was executed in order to defeat that claim has not been properly considered either by the execution court or by the first appellate court as envisaged

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Ex.S.A. No.18 of 2008

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under Section 53 of the Transfer of Property Act. Further, whether the said sale deed was executed in collusion as a device to defeat the claim of the decree holder has not been properly considered by both the appellate court as well as the execution court. When there is a document which was registered only after the attachment was effected over the property, styled as a one executed prior to the attachment , it should be considered in relation to the circumstances under which it was not registered as on the date of its execution and whether it is a device played by the party in order to defraud the claim of creditors of the transferer. The non-consideration of

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these relevant factors has actually resulted in miscarriage of justice. Hence liable to be set aside.

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In the result, the second appeal is allowed. The order of the execution court as well as the first appellate court are hereby set aside. The matter is remanded back to the trial court for fresh consideration of the matter in issue. Both parties

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Ex.S.A. No.18 of 2008

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shall appear before the execution court on 3.8.2018. Both parties shall be at liberty to adduce additional evidence, if any, if they desires so. No order as to cost of appeal.

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Sd/P. Somarajan Judge

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ahz/

Harikrishnan v. Rajamma Geetha

Case brief

What is this about?

What did the court decide?

Harikrishnan v. Rajamma Geetha

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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