M. Prem Kumar v. Muraleedharan and Samuel Raju (OP(C) No.1482/2018 & RFA (Misc.) No.6/2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **MONDAY, THE 25[TH] 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 ..2.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 25[TH] 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:** - **1 SAMUEL RAJU, S/O. SAMUEL, MULACKAL THARAYIL HOUSE, PERISERI MURI, PULIYOOR VILLAGE, CHENGANNUR TALUK.** **2 MURALEEDHARAN (TO BE IMPLEADED AS 2ND DEFENDANT) S/O. THANKAPPAN NAIR, MEDAYIL HOUSE, PATTANAKKADU MURI, PATTANAKKADU VILLAGE, CHERTHALA.** **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 **==> picture [31 x 8] intentionally omitted <==** ------------------------------------------------------------------------ ## 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. 2. For brevity, the parties are referred to as they are arraigned in the RFA. 3. During the pendency of the suit, when an application for attachment before judgment under Order XXXVIII Rule 5 of the Code of Civil Procedure was filed by the appellant in respect of the disputed property, it was revealed that all the properties which stood in the name of the second respondent had been transferred by bogus deeds even before OP(C) No.1482/2018 & RFA No.6/2020 **==> picture [31 x 8] intentionally omitted <==** 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. 4. The second respondent filed IA No.875 of 2016 under Order XXXVIII Rule 8 CPC, claiming rights over the attached property. It was allowed by the trial court by order dated 06.02.2018 on the ground that the sale deed executed before the attachment will not be affected by an order of attachment and it would prevail over the attachment. It is challenging this, RFA No.6 of 2020 has been filed. 5. Heard the learned counsel for the appellant as well as the learned counsel for the respondents. 6. The property scheduled in IA No.875 of 2016 was obtained by the first respondent as per sale deed No.2208/2010 dated 24.09.2010 of SRO, Chengannur, OP(C) No.1482/2018 & RFA No.6/2020 **==> picture [31 x 8] intentionally omitted <==** 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. 7. Learned counsel for the respondents submitted that the transfer, as per Ext.A1 sale deed, was effected much prior to the institution of the above suit. However, it is the submission of the learned counsel for the appellant that the transfer made by the second respondent is a fraudulent one under Section 53 of the Transfer of Property Act (for short, “the TP Act”), and that the petitions for impleading the claimant as the additional second defendant and for amending the plaint were dismissed by the trial court without proper application of mind. 8. While considering the applications, the trial court relied on a decision of this Court in Rajan v. Jayasree Nayar [2010 (1) KLT 142], wherein it was held that the question OP(C) No.1482/2018 & RFA No.6/2020 **==> picture [31 x 8] intentionally omitted <==** 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. 9. Learned counsel for the appellant handed over a Full Bench decision of this Court in Verizon Builders & Developers Ltd. (M/s.) & Another v. Jyothi Susan John [2018 (5) KHC 821], wherein, in paragraph Nos. 16 and 20, it has been held thus; “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 **==> picture [31 x 8] intentionally omitted <==** 20. When the legislature deemed it fit that "any claim" to attach property is to be considered under O. XXXVIII R.8, there is no reason why the power of the Court should be curtailed and should stop short of a plea u/s 53 of TP Act. The procedural difficulties in considering a claim u/s 53 should not be a reason to deprive the Court from considering a claim and the defence. Civil courts are enjoined to consider the disputes between the parties and when substantive rights are created and such rights are being flouted, it is for the civil court to consider the respective contentions and arrive at a proper decision. That the consideration of such matters would be comprehensive should never be a reason to take away the jurisdiction of a civil court. Civil Court is bound to consider all suits of a civil nature except, suits of which their cognizance is expressly or impliedly barred.” 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; - A. Impugned orders dated 06.02.2018 in IA No.221 of 2016, IA No.225 of 2016 and IA No.875 of 2016 in OS No.49 of 2012 on the file of the Sub Court, Mavelikkara are hereby set aside and the matter is remanded back to OP(C) No.1482/2018 & RFA No.6/2020 **==> picture [31 x 8] intentionally omitted <==** the trial court for consideration afresh. - B. Parties are directed to appear before the trial court on 09.04.2024. - C. The trial court, after hearing the parties, shall consider the applications and pass appropriate orders adverting to the Full Bench decision of this Court in Verizon Builders & Developers Ltd. (M/s.) (supra), within a period of three months thereafter. SD/- SHOBA ANNAMMA EAPEN JUDGE bka/- OP(C) No.1482/2018 & RFA No.6/2020 ..9.. ## **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.**