Plaintiff in a money suit challenged dismissal of impleadment and amendment petitions and allowance of a third-party claim under Order XXXVIII Rule 8 CPC. Relying on a Full Bench decision holding Rajan not good law, the High Court set aside all impugned orders and remanded for fresh consideration within three months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 25TH DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 RFA (MISC.) NO. 6 OF 2020
ORDER IN IA 875/2016 IN OS NO.49 OF 2012 OF SUB COURT, MAVELIKKARA
APPELLANT/PLAINTIFF:
M.PREMKUMAR, AGED 56 YEARS, S/O.MADHAVAN, MADHAVAM HOSUE, EREZHA NORTH MURI, KANNAMANGALAM VILLAGE, MAVELIKARA, PIN-690106, REPRESENTED BY POWER OF ATTORNEY HOLDER, RAJAN, AGED 65, S/O.NARAYANAN, THAVARASSERIL HOUSE, CHINGOLLI MURI, CHINGOLI VILLAGE, KARTHIKAPPALLY, PIN690516
BY ADV K.JAGADISACHANDRAN NAIR
RESPONDENTS/CLAIM PETITIONER/DEFENDANT:
1 MURALEEDHARAN, AGED 52 YEARS MEDAYIL HOUSE, PATTANAKKADU MURI, PATTANAKKADU VILLAGE, CHERTHALA TALUK, PIN-688529
2 SAMUEL RAJU, AGED 63 YEARS MULANI THARAYIL HOUSE, PERRISSERI MURI, PULIYOOR VILLAGE, CHENGANNUR, PIN-689510
BY ADVS. JOHN K.GEORGE (CAVEATOR) A.SHAFEEK (KAYAMKULAM)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2024, ALONG WITH OP(C).1482/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) No.1482/2018 & RFA No.6/2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 25TH DAY OF MARCH 2024 / 5TH CHAITHRA, 1946
OP(C) NO. 1482 OF 2018
ORDER IN IA 221/2016 & 225/2016 IN OS NO.49 OF 2012 OF SUB COURT, MAVELIKKARA
PETITIONER/PLAINTIFF:
M.PREMKUMAR, S/O. LATE MADHAVAN, MADHAVAM HOUSE, EREZHA NORTH MURI, KANNAMANGALAM VILLAGE, MAVELIKARA, REPRESENTED BY POWER OF ATTORNEY HOLDER N.RAJAN, AGED 62 YEARS, THAVASSERIL HOUSE, CHINGOLI MURI, CHINGOLI VILLAGE, MAVELIKARA.
BY ADV SRI.K.JAGADISACHANDRAN NAIR
RESPONDENTS/DEFENDANT & ANOTHER:
BY ADVS. SRI.A.SHAFEEK (KAYAMKULAM) SRI.JOHN K.GEORGE
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2024, ALONG WITH RFA (MISC.).6/2020, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) No.1482/2018 & RFA No.6/2020
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OP(C) No. 1482 of 2018 & RFA (Misc.) No. 6 of 2020
JUDGMENT
The OP(C) and the RFA have been filed by the plaintiff in OS No.49 of 2012 on the file of the Sub Court Mavelikkara, a suit for realization of money against the defendant. The first respondent in the OP(C) as well as the second respondent in the RFA is the defendant. The second respondent in the OP(C) as well as the first respondent in the RFA is the claim petitioner in IA No.875 of 2016.
OP(C) No.1482/2018 & RFA No.6/2020
..4..
he acknowledged his debts. On getting information, the appellant filed IA No.2794 of 2013 for amending the plaint and IA No.2795 of 2013 for impleading the first respondent (transferee) as additional second defendant in the suit, which were pending for a long time and were dismissed later as superfluous on the appellant filing similar applications as IA Nos.221 of 2016 and 225 of 2016. The trial court dismissed IA Nos.221 of 2016 and 225 of 2016, against which OP(C) No.1482 of 2018 has been filed.
OP(C) No.1482/2018 & RFA No.6/2020
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executed by the second respondent and his wife, Smt.Jayamol Raju. The said property was attached by the court at the instance of the appellant. According to the appellant, the transfer effected by the second respondent in favour of the first respondent was a fraudulent one; and the second respondent, colluding with the first respondent, filed IA No.875 of 2016 for defeating and delaying execution of the decree that may be passed against the second respondent.
OP(C) No.1482/2018 & RFA No.6/2020
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whether the transfer made by the judgment debtor is a fraudulent transfer under Section 53 of the TP Act need not be considered in a claim made by a transferee to a property attached before judgment under Order XXXVIII Rule 8 of CPC and that the applicability of Section 53 of the TP Act would arise only when such adjudication is made in execution under Order XXI of CPC.
“16. Therefore, we are of the view that in so far as the procedure under O. XXXVIII R.8 has incorporated O.XXI R.58 for RFA (Misc) Nos.529 & 777/15 adjudication of claims, any objection filed regarding the claim has to be adjudicated in accordance with law. When a claim is made in respect of a property by a third party claimant stating that the property attached has been assigned in his favour, even prior to the date of attachment, necessarily, the plaintiff/respondent gets an opportunity to file an objection and contend that the transfer was fraudulent. Therefore, while considering the claim, it is quite inconceivable to observe that the objection to the claim petition regarding fraudulent transfer under Section 53 of the TP Act need not be considered. Hence, we are of the view that Rajan's case (supra) does not lay down the correct proposition of law.
xxxxxxx
OP(C) No.1482/2018 & RFA No.6/2020
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It was further held therein that the decision in Rajan (supra), is not a good law. Hence, on the basis of the decision in Verizon Builders & Developers Ltd. (M/s.) (supra), I am of the opinion that the orders impugned in the OP(C) and RFA have to be set aside and the matter has to be remanded back to the trial court for consideration afresh.
Accordingly, the OP(C) and the RFA are disposed of, as follows;
OP(C) No.1482/2018 & RFA No.6/2020
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the trial court for consideration afresh.
SD/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
OP(C) No.1482/2018 & RFA No.6/2020
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APPENDIX OF OP(C) 1482/2018
PETITIONER EXHIBITS
| EXHIBIT P1 | TRUE COPY OF THE I.A. 2794/13, DATED 7.12.2013. |
|---|---|
| EXHIBIT P2 | TRUE COPY OF THE I.A. 2795/13, DATED 7.12.2013. |
| EXHIBIT P3 | TRUE COPY OF THE I.A. 221/16 FILED BY THE PETITIONER DATED 8.3.2016. |
| EXHIBIT P4 | TRUE COPY OF THE I.A. 225/16 FILED BY THE PETITIONER DATED 8.3.2016. |
| EXHIBIT P5 | TRUE COPY OF THE I.A. 875/16 UNDER ORDER 38 RULE 8 FILED BY THE 2ND RESPONDENT ON 21.10.2016. |
| EXHIBIT P6 | TRUE COPY OF THE B-DIARY. |
| EXHIBIT P7 | TRUE COPY OF THE PLAINT IN O.S. 49/2012, SUB COURT, MAVELIKARA. |
| EXHIBIT P8 | TRUE COPY OF THE WRITTEN STATEMENT IN O.S. 49/2012, SUB COURT, MAVELIKARA. |
| EXHIBIT P9 | THE ORDER IN I.A. 221/2016 IN O.S. 49/2012 SUB COURT, MAVELIKARA DATED 6.02.2018. |
| EXHIBIT P10 | TRUE COPY OF THE ORDER PASSED IN I.A. 225/2016 IN O.S. 49/2012 OF THE SUB COURT, MAVELIKARA DATED 6.02.2018. |
| EXHIBIT P11 | TRUE COPY OF THE ORDER IN I.A. 875/2016 IN O.S. 49/2012 DATED 6.02.2018. |
| EXHIBIT P12 | TRUE COPY OF THE A.S. NO.78 OF 2018 BEFORE THE DISTRICT COURT, MAVELIKARA. |
2 issues framed by the court
Whether a fraudulent transfer under Section 53 TP Act can be considered while adjudicating a claim over property attached before judgment under Order XXXVIII Rule 8 CPC.
Whether the trial court's orders on impleadment, plaint amendment and the third-party claim petition should be set aside.
Colour shows how this judgement treated each authority
Rajan v. Jayasree NayarDisapproved
[2010 (1) KLT 142]
Verizon Builders & Developers Ltd. (M/s.) & Another v. Jyothi Susan JohnRelied on
[2018 (5) KHC 821]
4 provisions across 2 enactments
M.Premkumar
Muraleedharan
Samuel Raju
Shoba Annamma Eapen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
