Dismissed

Maharashtra Apex Corporation Ltd. v. Kecramtakath Kunhipathumma

Kerala HC10 Jan 2022Ex.FA/28/2013

Case brief

AI extract

What is this about?

In an execution first appeal, the High Court held that a claim petition by a sale deed holder was correctly allowed as the attachment occurred after the debtor had no title. The appellant argued the Transfer of Property Act was ignored but was dismissed as no suit was filed within the statutory limitation period.

What did the court decide?

The appeal was dismissed with no costs awarded to the appellant.

Maharashtra Apex Corporation Ltd. Vs Kecramtakath… — Execution and Attachment | Kerala HC (2022)

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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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MONDAY, THE 10TH DAY OF JANUARY 2022 / 20TH POUSHA, 1943

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EX.FA NO. 28 OF 2013

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AGAINST THE ORDER DATED 19.10.2012 IN E.A.NO.38/2007 IN
E.P.NO.34/2005 IN AP 332/2000 OF DISTRICT COURT, THALASSERY

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APPELLANT/1ST RESPONDENT:

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MAHARASHTRA APEX CORPORATION LTD OPPOSITE TO ASHOKA HOSPITAL,REPRESENTED BY ITS ERNAKULAM BRANCH MANAGER,SRI.CHRISTY BOY.

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BY ADV SRI.S.R.DAYANANDA PRABHU

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RESPONDENTS/CLAIM PETITIONER & JUDGMENT DEBTORS:

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1 KEERANTAKATH KUNHIPATHUMMA AGED 44 YEARS

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D/O IBRAYEN,NO OCCUPATION,
PARIYARAM AMSOM DESOM,TALIPARAMBA TALUK-671312.

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2M.T.P.THAHIRA
W/O.LATE P.MUHAMMED KUNHI,DARUSALAM,MATTUMMAL
EAST,ELAMPACHI,KANNUR-671311.

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3 M.T.P.SARABI AGED 20 YEARS

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D/O.LATE.P.MUHAMMED KUNHI,DARUSALAM,

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MATTUMMAL EAST,ELAMPACHI,KANNUR-671311.

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4M.T.P.MUBASHIRA
AGED 19 YEARS

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D/O.LATE P.MUHAMMED KUNHI,DARUSALAM,MATTUMMAL
EAST,ELAMPACHI,KANNUR-671311.

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R1 BY ADV. SRI.MAHESH V RAMAKRISHNAN
R2 TO R4 BY ADV. SRI.ESM.KABEER

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THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON
10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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EX.FA NO. 28 OF 2013

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JUDGMENT

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The person, who obtained the immovable
property as per sale deed dated 12.09.2001,
came up with a claim petition as against the
attachment subsequently ordered on 02.11.2005
in execution proceedings of an award passed
by an arbitrator through the District Court.

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 2. The award was passed as early as on
28.04.2001 to recover certain sum. It is
just five months after, the judgment debtor
sold the property to the claimant by virtue
of the sale deed dated 12.09.2001.
Admittedly, the immovable property covered by
the sale deed is not the subject of
arbitration. The attachment was effected
only after the alleged sale, i.e. more or
less after four years, on 12.11.2005. At

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¶27

EX.FA NO. 28 OF 2013

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that time, the judgment debtor was not having
any subsisting interest, right or title over
the property. As such, the claim petition
was allowed.

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Inter alia, it is contended that there
is failure on the part of the Execution Court
to consider the application of Section 53 of
the Transfer of Property Act. It is
submitted that the abovesaid sale deed was
executed to defeat the creditor after the
passing of the award. To bring up a case
under Section 53 of the Transfer of Property
Act, it should be within a period of three
years from the date of alienation or
transfer. No such suit was brought up within
time. The abovesaid question can be raised
even at the stage of Order XXI Rule 58 CPC.
As discussed earlier, the attachment is

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EX.FA NO. 28 OF 2013

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effected after the period of more or less
four years. No suit or application was
submitted under Section 53 of the Transfer of
Property Act, within the time of limitation.
Hence, the present appeal fails, dismissed.
No costs.

¶33

 Sd/-

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P.SOMARAJAN
JUDGE

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SPV

Maharashtra Apex Corporation Ltd. v. Kecramtakath Kunhipathumma

Case brief

What is this about?

What did the court decide?

Maharashtra Apex Corporation Ltd. v. Kecramtakath Kunhipathumma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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