P. Suresh v. Sivadasan and Ponnayan Nadar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 Ex.FA.No. 113 of 2009(b) ----------------------OS.22/2002 of SUB COURT,NEYYATTINKARA .................... APPELLANT/ PETITIONER/ CLAIM PETITIONER: -------------------- P. SURESH SON OF PONNAYYAN NADAR KUZHIVIAL PUTHEN VEEDU THIRUPURAM PO BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI SRI.P.K.NIJOY RESPONDENTS: --------------- 1. SIVADASAN SON OF JALADHARAN PLANKALA VEEDU, ARUMANOOR DESOM, THIRUPURAM VILLAGE. 2. PONNAYAN NADAR SON OF SABARIMUTHAN NADAR KUZHIVILA PUTHEN VEEDU, THIRUPURATHOOR DESOM THIRUPURAM VILLAGE. BY ADV. SRI.CIBI THOMAS FOR R1 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO: 2806 OF 2009 ON EX.F.A. 113 OF 2009 DISMISSED. SD/- A.K.BASHEER (JUDGE) SD/- M.L.JOSEPH FRANCIS (JUDGE) 11.1.2010 // TRUE COPY// dl ## **A. K. BASHEER & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - Ex. F.A. No. 113 of 2009** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 11[th] day of , 2010. ## **JUDGMENT** ## **Basheer J.,** The appellant is the claimant/petitioner. He filed the claim petition under Order 21 Rule 58 of the Code of Civil Procedure before the execution court contending, inter alia, that the order of attachment in respect of the property obtained by him by virtue of Ext.A1 document was liable to be lifted since he had purchased the said property prior to the order of attachment. He further prayed for a declaration of his title over the property contending that the decree and judgment obtained by the decree holder will not bind either him or his property. 2. The court below, after considering the evidence adduced by the appellant/petitioner and the contentions raised by the decree ## **Ex.F.A. No. 113 of 2009** **==> picture [14 x 10] intentionally omitted <==** holder, dismissed the claim petition holding that Ext.A1 document was executed in order to defraud the decree holder/creditor. The said order is under challenge in this Execution First Appeal. 3. Shorn of unnecessary details, the relevant facts may be briefly noticed. 4. The Respondent No. 1 herein instituted the suit against respondent No.2 / judgment debtor on January 23, 2002. It is beyond controversy that the three items of property belonging to the judgment debtor were attached by the trial court on March 19, 2002, shortly after the institution of the suit. Though the suit was hotly contested by the judgment debtor, it was decreed by the trial court on August 5, 2004 for a sum of Rs.1,53,750/- with interest and costs. Thereafter the decree holder filed Execution Petition No. 54/ 2006 before the Subordinate Judge’s court, Neyyattinkara to get the above decree executed. 5. It is on record that on the day when the Execution Petition was posted for appearance of the judgment debtor, the appellant filed the above claim petition with the prayers mentioned supra. In ## **Ex.F.A. No. 113 of 2009** **==> picture [14 x 10] intentionally omitted <==** the claim petition it was contended by the appellant that he had purchased the properties under attachment on the strength of Ext.A1 document executed by the judgment debtor, (who is none other than his father) on July 25, 2001 for a total consideration of Rs.1,10,000/-. According to the appellant, the said assignment deed was executed by his parents in his favour in discharge of certain existing liability. He admitted that item No.1 and 2 exclusively belonged to his father at the time of assignment. Item No.3 belonged to his mother exclusively, though in the document his father's name was shown as a trustee. 6. The Claim petition was stoutly resisted by respondent No. 1/ decree holder. He contented that the attempt of the appellant was only to defeat the decree holder and deny him the fruits of the decree obtained by him. 7. He pointed out that the judgment debtor had executed a promissory note in his favour on January 26, 1999, at the time when he borrowed a sum of Rs.1,00,000/-. The suit was instituted for recovery of the said sum. The judgment debtor, who was ## **Ex.F.A. No. 113 of 2009** **==> picture [14 x 10] intentionally omitted <==** apparently aware that the suit was about to be filed against him, had created Ext.A1 sham document obviously to defraud the creditor, it was contented. 8. The appellant got himself examined as PW1 and his witness was examined as PW2. Exts.A1 and A2 were marked on his side. The learned Subordinate Judge, after considering the oral and documentary evidence, took the view that Ext.A1 document was sham and was intended only to defraud respondent No.1/ decree holder. 9. We have carefully perused the materials available on record and heard learned counsel for the parties at length. 10. It is true that Ext.A1, Sale deed was executed in favour of the appellant on July 25, 2001 even before the suit was instituted by the decree holder against respondent No.2, father of the appellant. But there are certain vital and clinching circumstances which would justify the conclusion made by the learned Subordinate Judge in holding that Ext.A1 document was sham. 11. As mentioned earlier, the appellant entered appearance in ## **Ex.F.A. No. 113 of 2009** **==> picture [14 x 10] intentionally omitted <==** the Execution Petition on the day when it was posted for appearance of the judgment debtor. Curiously, the judgment debtor remained absent in the Execution Court. He has not bothered to appear before this court also. The appellant has not stated whether or not he was aware of the order of attachment till he filed the claim petition, 5 years after the execution of Ext.A1 document. It might have been difficult for him to say that he did not know about the attachment. Since going by the address shown in the cause title not only before the execution court but also in this court, it can be seen that the appellant is residing along with the judgment debtor himself. 12. More significantly, the appellant has not produced any document to show that he has been in exclusive possession and enjoyment of the property ever since execution of Ext.A1 document. There is no record to show that mutation has been effected after the assignment. Appellant has not produced any tax receipt or such other document in respect of the property that would show that he had got exclusive possession pursuant to Ext.A1 :6: ## **Ex.F.A. No. 113 of 2009** document. 13. Moreover, as rightly noticed by the court below, the oral evidence of PWs. 1 and 2 would not inspire any confidence in the court. PW2 who is a close relative of PW1 stated that PW1 was present in the Sub Registrar’s office at the time of execution of the document. But PW1 in the course of his cross examination, asserted that he was not present. 14. It is also pertinent to note that the suit was pending before the trial court for more than three years before it was decreed in the year 2004. The appellant, who had been apparently residing with the judgment debtor, has no case that he was not aware of either of the suit of the order of the attachment issued pending the suit. 15. Learned counsel for the appellant has invited our attention to a decision of their Lordship of the Supreme Court in **Hamda Ammal v. Avadiappa & 3 others** (1991(1) KLT 2 (SN), The issue that came up for consideration in that case was, whether the title in an immovable property passed in favour the vendee from ## **Ex.F.A. No. 113 of 2009** **==> picture [14 x 10] intentionally omitted <==** the date of execution of the document, though it was registered on a later date. Their Lordships held that going by the provisions contained in Section 47 of the Registration Act, the factum of execution was more relevant and crucial rather its registration. The above decisions has no relevance in the facts and circumstances of their case. The appeal is devoid of any merit and accordingly it is dismissed. ## **A. K. BASHEER, JUDGE** ## **M. L. JOSEPH FRANCIS, JUDGE** dl/