JOSEPH KANIPARAMBIL v. BIJU THURUTHIMATTAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931** ## **WP(C).No. 16437 of 2008(F)** **----------------------------------AGAINST THE ORDER IN EP. 41 /2007 IN OS.431/2001 of MUNSIFF COURT, THALIPARAMBA .** **....................** **PETITIONER(S):** **-----------------------** **JOSEPH KANIPARAMBIL, S/O VARKEY AGED 59, AGRICULTURIST, ARIVINJAPOYIL, ALAKODE AMSOM, ARANGAM DESOM, TALIPARAMBA TALUK.** **BY ADVS.MR.MATHEW KURIAKOSE MR.G.GIREESH** **RESPONDENT(S):** **-------------------------** **BIJU THURUTHIMATTAM, S/O JOSEPH, AGED 32, ARIVINJAPOYIL, ALAKODE AMSOM, ARANGAM DESOM, TALIPARAMBA TALUK.** **R1 BY ADV.MR.E.M.MURUGAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.16437/2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE EXECUTION PETITION, NUMBERED AS 41 /07 IN OS.431/2001 ON THE FILES OF THE MUNSIFF'S COURT, TALIPARAMBA.** **P2:- COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE RESPONDENT IN EP. 41/07 IN OS. 431/01 ON THE FILES OF THE MUNSIFF'S COURT, TALIPARAMBA.** **P3:- COPY OF THE ORDER IN EP.41/2007 IN OS. 431/01 ON THE FILES OF THE MUNSIFF'S COURT, TALIPARAMBA.** **TRUE COPY** **P.S. TO JUDGE** **tss** ## **S.S.SATHEESACHANDRAN, J.** ## **------------------------------------------------** ## **W.P.(C).No.16437 OF 2008** **----------------------------------------------Dated this the 5[th] day of February, 2010.** ## **JUDGMENT** The writ petition has been filed seeking the following reliefs: - **i) Call for the records leading to Exhibit P3 and issue a writ of certiorari or any other appropriate writ, order or direction, quashing the same;** - **ii) direct the learned Munsiff, Taliparamba, to proceed with Ext.P1 Execution Petition and execute the decree in O.S.No.431/2001 by proceeding against the property scheduled in Ext.P1;** - **iii) Issue such other appropriate writ, order or direction which this Hon'ble Court may deem fit in the circumstances of the case;** - **iv) award costs of these proceedings.”** 2. Petitioner is the decree holder in a suit for money. In execution of the decree steps were initiated for attaching an immovable ## **W.P.(C).No.16437 OF 2008** ## **:: 2 ::** property allegedly belonging to the judgment debtor/respondent herein. The judgment debtor filed objections to the application for attachment contending that he had no title over the property in view of a settlement deed executed earlier. A copy of the settlement deed was also produced by the judgment debtor. The decree holder impeached the settlement effected over the immovable property by the judgment debtor as a fraudulent transfer made for defeating the decree. Other than the copy of the settlement deed produced by the judgment debtor which was exhibited as Ext.B1, no material was produced by both sides before the court below. Learned Munsiff, after hearing both sides, negatived the case of the decree holder that Ext.B1 was a fraudulent transfer ## **W.P.(C).No.16437 OF 2008** **:: 3 ::** and declined to attach the property scheduled in his petition. The execution petition was also dismissed. Ext.P3 order passed by the learned Munsiff is challenged in the writ petition, invoking the visitorial jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. 4. Inviting my attention to the decision reported in **Iyyunni v. Anto {1994(1) KLT 583}, Chumar v. Alima {1998 KLT 101}** and also **Abdul Shukoor v. Arji Papa Rao {AIR 1963 SC 1150}** , the learned counsel contended that when a question is canvassed before the court that the transfer effected by the judgment debtor after the passing of a decree is vitiated by fraud as ## **W.P.(C).No.16437 OF 2008** **:: 4 ::** having been made to defeat the decree holder from enjoying the fruits of the decree, necessarily the court has to consider and examine whether any title had transferred by virtue of the transfer deed executed by the judgment debtor. Such an enquiry was not conducted by the execution court in the present case and, the transfer deed Ext.B1 which was admittedly executed by the judgment debtor in favour of his wife after acceptance of notice in the execution petition was lost sight of by the court below while declining the request made by the decree holder for attaching the property scheduled in his petition is the submission of the counsel. According to the learned counsel, title over the property covered by Ext.B1 deed continued with the ## **W.P.(C).No.16437 OF 2008** ## **:: 5 ::** judgment debtor and the transfer purported to have been made under that deed was a fraudulent one to defeat the decree. 5. The solitary question when an application for attachment over immovable property is moved in execution, is whether the judgment debtor has title over that property. When a registered deed is executed over an immovable property, the normal presumption is that the title has passed to the transferee unless covenants in that deed restrict in any manner or postpone the passing of title to the transferee. Merely because the transfer under Ext.B1 sale deed in favour of his wife was after receipt of notice in the execution petition, it does not follow that the transfer has to be viewed with suspicion that it is ## **W.P.(C).No.16437 OF 2008** **:: 6 ::** fraudulent. Order XXI Rule 54 of the Code of Civil Procedure contemplates and permits an attachment only where the property to be attached belong to the judgment debtor against whom such order is sought for. The decisions referred to by the counsel, all of them, have no application to the present case. Plea of defence available to an attaching creditor that the transfer in favour of the claimant, which was considered in the above cases,is entirely different from the right of a decree holder to seek an attachment of a property previously owned by him but transferred to third party on the premise that such transfer is a fraudulent transfer. Moreover, when a challenge is raised against an order of the inferior court invoking the writ jurisdiction of this under Article 227 ## **W.P.(C).No.16437 OF 2008** **:: 7 ::** of the Constitution, unless it is shown that the court has exercised its jurisdiction erroneously and the order impugned suffers from such jurisdictional infirmity this court is not expected nor can be called upon to interfere with such an order. I do not find any impropriety or illegality in the order passed by the court below holding that the plea canvassed by the petitioner/decree holder that Ext.B1 transaction is a fraudulent transfer is unacceptable. 6. Learned counsel for the petitioner has taken exception to the order of the court below in dismissing his execution petition, after negativing the request made for attachment. I find from the copy of the execution petition produced Ext.P1, the relief ## **W.P.(C).No.16437 OF 2008** ## **:: 8 ::** canvassed is for proceeding against the property scheduled, and not against the person of the judgment debtor. When that be so, the court below cannot be found fault with for dismissing the execution petition. Writ petition lacks merits and is dismissed. Sd/- **(S.S.SATHEESACHANDRAN) JUDGE** SK/- **//true copy//**