RP No. 677 of 2022 & Mat.A No. 607 of 2008

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`&`** ## **`THE HONOURABLE MRS. JUSTICE C.S. SUDHA`** ``` THURSDAY, THE 2[ND] DAY OF NOVEMBER 2023 / 11TH KARTHIKA, 1945 ``` ## **`RP NO. 677 OF 2022`** ## **`AGAINST THE ORDER/JUDGMENT IN MAT.APPEAL NO.607/2008 DATED 19.12.2018`** ## **`OF HIGH COURT OF KERALA`** ## **`REVIEW PETITIONER: [THIRD RESPONDENT IN THE MAT.APPEAL]`** ``` ELIZABETH, ``` ``` IRUMPANATH HOUSE, THUNDATHUMKADAVU, VARAPUZHA (P.O), PARUR TALUK, ERNAKULAM DISTRICT, PIN 683 517, PRESENTLY RESIDING AT 'MALIAKKAL' HOUSE, 60/1709-D, SREE MURUGA TEMPLE ROAD, KADAVANTHARA P.O, ERNAKULAM DISTRICT, PIN 682 020. ``` ``` BY ADV R.RAJESH KORMATH ``` ## **`RESPONDENTS: [APPELLANTS 1 AND 2, AND RESPONDENTS 1, 2 AND 4 IN THE`** ## **`MAT. APPEAL]`** ``` 1LEENA GOVINDAN, AGED 56 YEARS WIFE OF A.D. GOVINDA NAIK, ARAKKAL HOUSE, CHIRAKKAKOM, VARAPUZHA (P.O), ERNAKULAM DISTRICT , PIN 683 517. ``` ``` 2JAYAKRISHNAN, AGED 35 YEARS ``` ``` SON OF GOVINDA NAIK, ARAKKAL HOUSE, CHIRAKKAKOM, VARAPUZHA (P.O), ERNKULAM DISTRICT, PIN 683 517. ``` ``` 3GOVINDA NAIK A.D, SON OF DAMODARA NAIK, ARAKKAL HOUSE, ESSGEE FLAME, ALANGAD MARKET, ALANGAD VILLAGE, PARUR TALUK, ERNAKULAM DISTRICT, PIN 683 511. ``` ``` 4PETER THOMAS, SON OF K.J. THOMAS, KARAKKAPARAMBIL HOUSE, MULAVUKAD P.O, ERNAKULAM DISTRICT, PIN 682 504. ``` ``` 2 ``` ## **`RP NO.677 OF 2022 & Mat.A No.607 of 2008`** ``` 5THE SPECIAL TAHSILDAR (I.A.), N.H.I.A, COLLECTORATE, KAKKANAD, ERNAKULAM DISTRICT, PIN 682 030. ``` ``` BY ADVS. M.S.UNNIKRISHNAN ALEENA MARIA JOSE M.ARDRA KRISHNAN ``` ``` THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 02.11.2023, ALONG WITH MAT APPEAL NO.607/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA ``` ``` THURSDAY, THE 2[ND] DAY OF NOVEMBER 2023 / 11TH KARTHIKA, 1945 ``` ``` MAT.APPEAL NO. 607 OF 2008 ``` ## **`AGAINST THE ORDER/JUDGMENT IN OP 1415/2004 OF FAMILY`** ## **`COURT,ERNAKULAM`** ## **`APPELLANTS/PETITIONERS:`** - `1 LEENA GOVINDAN , W/O/A.D.GOVINDA NAIK, AGED 42, ARAKKAL HOUSE, CHIRAKKAKOM, VARAPUZHA.P.O.` - `2 JAYAKRISHNAN, S/O.GOVINDA NAIK AGED 21, ARAKKAL HOUSE, CHIRAKKAKOM, VARAPUZHA.P.O.` ``` BY ADV T.G.SUNIL (PRANAVAM) ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1GOVINDA NAIK AND OTHERS ARAKKAL HOUSE, ESSFEE FLAME, ALANGAD MARKET,, ALANGAD VILLAGE, PARUR TALUK ``` - `2 MR.PETER THOMAS SO. K.J. THOMAS KARAKKAPARAMBIL HOUSE, MULAVUCAD.P.O, ERNAKULAM.` - `3 MRS. ELIZABETH IRUMPANATH HOUSETHUNDATHUMKADAVU, VARAPUZHA.P.O,, VARAPUZHA, PARUR TALUK.` ``` 4THE SPECIAL TAHSILDAR IA N.H I.A COLLECTORATE, KAKKANAD. ``` ``` 4 ``` ## **`RP NO.677 OF 2022 & Mat.A No.607 of 2008`** ``` BY ADVS. R.RAJESH KORMATH SRI.A.BALAGOPALAN SMT.KALA G.NAMBIAR SRI.A.RAJAGOPALAN ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02.11.2023, ALONG WITH R.P.NO.677/2022 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 5 ``` ## **ORDER** ## **`AMIT RAWAL, J.`** 1. Review petition has been filed against the judgment of this Court in Mat.A.No.607/2008 whereby, referring to provisions of Section 64(1) of the Code of Civil Procedure, judgment and decree of trial court rendered in O.P.No.1415/2004 was set aside and the Original Petition was decreed, on the ground that there is an error apparent on record as the provisions of Section 64(2) r/w order 38 Rule 5(1) and (4) have not been taken into consideration while setting aside judgment and decree. 2. Notice of this review petition has been issued and the other side also appeared. We have heard the learned counsel for the parties. 3. For adjudication of review petition facts in brief are essential and necessary for understanding the controversy. Govinda Naik and Leena Govindan had solemnized the marriage, certain gold ornaments and money was allegedly ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 6 ``` exchanged. There was a dispute amongst the parties which led to filing of O.P.No.158/1996. During the pendency of the aforementioned O.P., there was an attachment order. On the basis of an agreement dated 21.01.1998 husband had agreed to pay a sum of Rs.5,00,000/- (Rupees five lakhs only) out of which Rs.2,00,000/- (Rupees two lakhs only) was paid. In lieu of the receipt of Rs.2 lakhs, the attachment passed in the said O.P. was released/lifted. 4. On 11.09.1998 Govinda Naik sold the property owned by him to one Peter Thomas. Thus, after 11.09.1998 Peter Thomas became, for all intends and purposes, the absolute owner of the property. There was no encumbrance or attachment on the property. On 5.10.1998 O.P.No.628/1998 was preferred by the wife for claiming balance amount as agreed in the agreement dated 21.01.1998 plus damages. Concededly, in the said O.P. only husband Govinda Naik was impleaded as respondent. On 16.02.1999, an attachment was affected, a non-encumbrance certificate was issued, ultimately ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 7 ``` it became final on 06.03.1999. 5. During the subsistence of the attachment, Peter Thomas sold the property to Elizabeth-review petitioner on 30.10.1999. 6. On 30.06.1999, O.P.No.628/1999 was decreed whereby wife Smt.Leena Govind was permitted to recover a sum of Rs.3 lakhs along with the interest at the rate 12% from 21.01.1998 till realization. We have been informed that the aforementioned decree was not executed. 7. Things did not stop here. Wife instituted another O.P.No.1415/2004 wherein for the first time both Peter Thomas and Elizabeth were arrayed as respondent Nos.2 and ## 3. The claim sought was as under: “a) declare that the transactions made by the 1[st] respondent between the 2[nd] and 3[rd] respondents are null and void and it will not in any way affect the right of the petitioners for maintenance from the 1[st] respondent. b) Pass a permanent prohibitory injunction restraining the 3[rd] respondent from alienating or encumbering the petition schedule propery by way of sale, gift, mortgage, will etc. ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 8 ``` - c) Pass a permanent prohibitory injunction restraining the 4[th] respondent from disbursing the Land Acquisition award with regard to the petition schedule property to any one except the petitioners. - d) declare that the petitioners are entitled for arrears of maintenance for the past 3 years at the rate of Rs. 750/-per month with future interest at 12% and the same may be allowed to be recovered from the 1[st] respondent and charged on the petition schedule property. - e) declare that the respondents No.2 and 3 are not having any title or right over the petition schedule property. - f) declare that the petitioners are entitied to receive the land acquisition award with regard to the petition schedule property. - g) Allow such other orders which this Honourable Court deems fit - h) Allow the cost of the petition.” 8. On perusal of the above, the prayers made were; that transactions made by the husband in favour of Peter Thomas and by Peter Thomas in favour of Elizabeth was null and void with a prohibitory injunction restraining Elizabethreview petitioner from alienating /encumbering the property by ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 9 ``` issuing direction to Tahsildar not to disburse the acquisition amount, a decree of arrears of maintenance for past three years at the rate Rs.750/- (Rupees Seven Hundred and Fifty only) per month with future interest at the rate of 12%, declaration that both Peter Thomas and Elizebeth did not have any title or right in the scheduled property etc. The said suit, on contest was partly allowed with regard to the maintenance allowance but regarding the declaration qua the property, relief was rejected. The suit was dismissed. It is in that background, Mat. Appeal No.607/2008 was filed. 9. Division Bench of this Court, after hearing the matter at length, noticing the rival contentions as well as the provisions of Section 64 of the Code of Civil Procedure, allowed the appeal and set aside the decree. Document No.6070/1999 of SRO Alangad was declared void. 10. Learned counsel appearing on behalf of the review petitioner Elizabeth in support of the review petition has raised the following submissions: ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 10 ``` 1. When Govinda Naik assigned his right in favour of Peter Thomas there was no order of attachment in O.P.628/1998 on the file of Family Court, Ernakulam. 2. Review Petitioner is a bonafide purchaser as per the provisions of Section 41 of the Transfer of Properties Act and therefore entitled to protect the possession as per the provisions of Section 53 of the Act. 3. Provisions of Section 64 has been read in isolation of order 38 Rule 5(1) and (4). In other words, attachment of March, 1999, was void ab initio. The attachment merged in the decree rendered in O.P.No.628/1998. The said decree was attempted to be executed at the instance of the wife. 4. O.P.No.1415/2004 was filed after a gap of five (5) years claiming the relief extracted above. At that time, wife arrayed the subsequent purchasers, including the husband. ``` 11 ``` ## **`RP NO.677 OF 2022 & Mat.A No.607 of 2008`** 5. In O.P.No.628/1998 except husband neither Peter Thomas nor Elizebeth were ever impleaded as, during the subsistence of said O.P. Elizabeth had acquired interest in the property and Govinda Naik had not title or inherent in the property. 11. In support of the aforementioned submissions reliance has been laid to the judgment of Supreme Court in _**Hamda Ammal**_ v. _**Avadiappa Pathar and Others**_ [1991(1) SCC 715] and judgment of Single Bench of this Court in _**Kesava Pillai and Another**_ v. _**Ahammed Kunju and Another**_ [1963 KHC 385] to contend it was not a physical attachment only but the interest for the decree holder was protected at a later point of time. 12. It was next contended that error has crept in the judgment of Division Bench in not noticing the provisions subsection 2 of Section 64 which are synonymous with the provisions of sub-rule 4(1) of Rule 5 of Order 38. 13. On the other hand, learned counsel appearing on ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 12 ``` behalf of the respondent rebutted the arguments with full vehemence and eloquence that the scope of the review while exercising the power under Order 47 Rule 1 r/w Section 114 of the CPC is too narrow and bleak, at the best it can ground for an appeal but not an error as sought to be projected. Judgment has been passed on the basis of the appreciation of the facts, law as well as provisions of Section 64 CPC which has been carved out in order to protect the interest of the decree holder where judgment debtor fraudulently transferred the property. Wife has been left in high and dry and not able to enjoy the fruits of the decree dated 30.06.1999 passed in O.P.No.628/1998 realising that the decree could not have been executed as husband fraudulently transferred the property in favour of Peter Thomas and subsequently Peter Thomas in favour of Elizabeth, left with no other option, but impelled to institute O.P.No.1415/2004 and urged this Court for dismissal of the review petition. 14. We have heard the learned counsel for the parties ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 13 ``` and appraised the paper book. 15. We would be failing in duty in not extracting the finding rendered by the Division Bench in favour of the respondent-wife and against the review petitioner by referring to certain provisions of the Transfer of Property Act and Section 64 CPC. “12. There is no doubt about the fact that at the time when the attachment was effected, the property was already transferred by the first respondent as per deed dated 11/9/1998. The order of attachment was passed in OP No.628/1998 only on 16/2/1999 and attachment was effected on 6/3/1999. Therefore, at the time when first respondent had assigned the property in favour of the 2nd respondent, there was no attachment. In other words, the first respondent did not have any interest in the property as on the said date. Therefore, the only question to be considered is whether the transfer was effected by the first respondent to defeat or delay the creditors of the transferor. S.53 reads as under:- “53. Fraudulent transfer: Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration. Nothing in this sub-section shall affect any law for the ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 14 ``` time being in force relating to insolvency. A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of, or for the benefit of, all the creditors. (2)Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.” 13. In this case, the admitted facts would clearly indicate that the first respondent knowing fully about his obligation to pay the contractual amount due to the petitioners transferred the property at a time when the obligation still existed. Of course, if the transferee had purchased the property in good faith and for consideration, the rights of the transferee will not be affected. In this case, the transferee is the 2nd respondent who remained ex parte. He remained ex parte may be on account of the fact that he had already transferred his rights in favour of the 3rd respondent. 14. The 3rd respondent is a subsequent transferee. Subsequent transferee can also take up a contention that the intention of the transfer was not to defeat or delay the creditors of the transferor. It is settled law that if a person ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 15 ``` acquires property for value and in good faith, without being a party to any design on the part of the transferor to defeat or delay creditors, his rights will not be affected by S.53 although the transferor's intention may have been fraudulent. The onus of proving want of good faith in the transferee is on the creditor who impugns the transaction. 15. In the case on hand, two factors are to be considered. One is that the 3rd respondent, who contests the matter, claims to be a bonafide purchaser. According to her, she has purchased the property in good faith and for valuable consideration. Ext.B3 is the encumbrance certificate dated 3/2/1999. As already stated, the attachment was ordered on 16/2/1999. Ext.B3 encumbrance certificate. Ext.B3 does not cover the period including the date of attachment. The property was purchased only on 30/10/1999. By that time, the attachment was in force. 16. As far as the 3rd respondent is concerned, she has given evidence stating that she is a bonafide purchaser and has paid valuable consideration for purchasing the property as per Ext.B1 document. The 3rd respondent was examined as RW1. She had stated that she had purchased the property with all bonafides and had paid valuable consideration and that she was in possession of the property since then and paying tax. She also deposed that she has no relationship with 2nd respondent. She had obtained encumbrance certificate for 12 years. In cross examination, other than questioning on obtaining the encumbrance certificate, her bonafides in purchasing the property is not effectively cross-examined and there is no cross examination regarding the sufficiency of the value of the property. The ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 16 ``` first petitioner was examined as PW1. Even in the plaint, or in the affidavit filed in lieu of chief-examination, first petitioner does not have a case that the consideration paid by the 3 rd respondent was insufficient for the property. Therefore, we have to hold that the 3rd respondent is a bonafide purchaser and has purchased the property for valuable consideration. Therefore, the sale in favour of third respondent is not hit by S.53 of the T.P. Act. 17. But, as already stated, in so far as the properties were purchased when the attachment was in force, the 3rd respondent becomes liable for the debt incurred pursuant to the attachment as contemplated u/s 64 of CPC. S.64(1) of C.P.C. applies to the fact situation, which reads as under:- “64. Private alienation of property after attachment to be void-(1) Where an attachment has been made, any private transfer or delivery of the property attached or any interest therein and any payment to the judgment debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.” 18. S.64 clearly provides that the transfer becomes void only against the claims enforceable under the attachment. Once the claim is satisfied, the transfer cannot be treated as void. In the light of the aforesaid factual situation, we are of the view that the appeal can be allowed as under:- (i) The judgment in OP No.1415/2004 of the Family Court is set aside. (ii) The OP is decreed as under:- ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 17 ``` (a) The transfer of property in favour of the 3rd respondent is hit by S.64 of the Code of Civil Procedure. (b) Ext.B1 document No.6070/1999 of SRO, Alangad is declared as void as against the claims enforceable under the attachment in OP No.628/98 of the Family Court, Ernakulam.” 16. On cumulative reading of aforementioned paragraph resulting into setting aside of the judgment and decree dated 15.05.2008 rendered in O.P.No.1415/2004, the sale dated 30.10.1999 vide document No.6070/1999 of SRO, Alangad has been declared void against the claim enforceable under attachment in O.P.No.628/1998 of Family court. 17. We are afraid that this Court was not called upon to examine and adjudicate the merit and demerit of the decree dated 30.06.1999 rendered in O.P.No.628/1998. It had attained finality and remedy for the wife was to seek execution. This is the error apparent on record which cannot escape the notice of this court leaving the parties to agitate the issue through appeal. 18. Provisions of Order 38 Rule 5 have already been ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 18 ``` ## extracted in paragraph 2 of the judgment in _**Hamda Ammal**_ (supra), the same reads as under: “2. In order to decide the above controversy we would advert to some relevant provisions. Order XXXVIII Rule 5 C.P.C. which provides the conditions for attachment before judgment reads as under: “5(1) Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, - - (a) is about to dispose of the whole or any part of his property, or - (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 19 ``` specified. (4) If an order of attachment is made without complying with the provisions of Sub-rule (I) of this rule, such attachment shall be void. The above provision itself makes it clear that the attachment before judgment would be made where the Court is satisfied that the defendant is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of Court with the intention to obstruct or delay the execution of any decree that may be passed against him. Thus this provision would not apply where the sale deed has already been executed by the defendant in favour of a third person. A transaction of sale having already taken place even prior to the institution of a suit cannot be said to have been made with the intention to obstruct or delay the execution of any decree. It would be a different case altogether if a creditor wants to assail such transfer by sale under sec. 53 of the Transfer of Property Act, 1882 (hereinafter referred to as the Act) on the ground of a fraudulent transfer. Such suit would be decided on totally different considerations in accordance with the provisions of sec. 53 of the Act. Order XXXVIII Rule 10 C.P.C. reads as under: “10. Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree. ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 20 ``` This provision also makes it clear that attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit.” 19. On perusal of the provisions of Sub-rule (4)(1) of Rule 5 of Order 38 CPC, it is evident that attachment can be passed at any stage of the suit if the Court is satisfied by an affidavit or otherwise that the defendant, in the instant case would be the husband, with an intend to obstruct or delay the execution of decree that may be passed against him by disposing or removing all of the property the Court is empowered to attach the property subject to the judgment. However, the said provision cannot be looked into in isolation but has to be read cumulatively and in conjunction with other provisions, that is sub-rule 4 which envisages that if an order of attachment is made without complying with the provisions of sub-rule (1), such attachment shall be void. On the date when the attachment dated 06.03.1999 was affected in O.P.No.628/1998, Govinda Naik the husband was not the ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 21 ``` owner. So there was no charge enforceable on the property whereas Peter Thomas had acquired the interest on 11.09.1998. No doubt the property in the hands of Elizabeth– review petitioner came to be acquired only 30.10.1999 when the suit/O.P.No.628/1998 was pending. But already third party right had been created and therefore she can very well be said to be a bonafide purchaser as enumerated in Section 41 of the Transfer of Property Act. 20. The question which now arises for consideration for reviewing the order is whether in view of the provisions of Section 64(1) of CPC, a charge crated in the decree in O.P.No.628/1998 which was not subject matter of challenge in the matrimonial appeal, would be sustainable or can be termed to be an error apparent on record. For the sake of brevity, Section 64(1) and (2) of the CPC reads as under: **“Section 64(1)** Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 22 ``` (2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.] Explanation. For the purpose of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.” 21. On perusal of the findings rendered by the Division Bench in the judgment sought to be reviewed, with full humility we notice that Division Bench omitted to refer to subsection 2 of Section 64. Sub-section 2 opens with a nonobstante clause and states that the provisions of the Section would not be applicable to any private transfer or delivery of property attached or any interest thereon made in pursuance of any contract for such transfer or delivery entered into or registered before the attachment. The judgment sought to be reviewed remained oblivious of the fact that the registered document had already been created in favour of Peter Thomas way back on 11.09.1998 by virtue of a registered document. In our considered view, Section 64 could not have come to the ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 23 ``` rescue of appellant- respondent non-applicant ie., the wife. Learned Court in O.P.No.1415/2004 while rendering the finding on the claim of the wife with regard to the properties rendered the findings as under: “18. While examined as RW1, the third respondent has stated that she purchased the petition schedule property after verifying the title deeds and confirming the title over that property. RWI has stated that at the time of purchasing the petition schedule property she obtained encumbrance certificate relating to that property. According to RW1 the attachment if any was not ordered of effected at the time when She purchased the petition schedule property. She has denied the suggestion that she purchased the petition schedule property knowing fully well about the liability to the petitioners by the first respondent. Ext.A1 is the copy of the agreement dated 21.1.2008, executed between the first petitioner and the first respondent as per Ext.A1 document, the 1[st] respondent undertook to pay a sum of Rs.5 lakhs in full and final settlement of all the claims against the first respondent. It is also stated that on the date of execution of Ext.A1 document the first respondent paid and the first petitioner received a sum of Rs.2 lakhs towards part satisfaction of their monetary claim. Ext.A2 is the copy of the judgment in O.P.628/98 dated 30.6.1999. Ext. A3 is the copy of the Amin's report pertaining to the attachment effected over the petition schedule property, as per the order in I.A ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 24 ``` 1868/98 in O.P.628/98. Ext A3 documents reveals that the attachment was effected on 6.3.1999. Ext. A4 is the copy of the decree in O.P.628/98. In Ext A2 and A4 there is no mention that the attachment effected as per Ext.A3 has been made absolute and the petition schedule property is made as charge for discharging the decree amount. 19. Ext. B1 is the assignment deed dated 30-10-1999 executed by the second respondent in favour of third respondent. Ext. B1 document reveals that the second respondent assigned the petition schedule property in favour of the third respondent on 30-10-1999. The recitals in Ext.B1 document revealed that the second respondent purchased the petition schedule property as per document No. 4436/1998 of Alangad Sub Registrar's Office from the first respondent. Ext, B2 is the basic tax receipt pertaining to the petition schedule property, in the name of third respondents. Ext.B3 is the encumbrance certificate relating to the petition schedule property for the period from 1.2.'98 tp 11.09.1998. The third respondent has also produced the encumbrance certificate relating to the petition schedule property for the period from 01.01.98 to 10.02.1998 and for the period from 11.09.1998 to 2.2.1999. Those documents reveal that the attachment effected as per order in I.A.479/98 in O.P.158/98 on the file of this court was raised on 10.02.1998, and that aspect was recorded in the encumbrance certificate for the period from 1.1.89 to 10.02.1998. The other encumbrance certificate produced by the third respondent for the period from 11.09. 98 to 2.2.1999 reveals that as per the document No.4436/98 dated 11.09.1998 the first respondent assigned the petition schedule property in favour of the second ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 25 ``` respondent. Therefore, it is evident that after 11.9.1998 the first respondent had no right or title over the petition schedule property. As per Ext.B1 document dated 31.10.1999 the third respondent purchased the petition schedule property from the second respondent. Ext. A3 document reveals that the attachment as per I.A.1868/98 in O.P.628/98 was effected on 6.3.1999. On the date of effecting the attachment as per I.A.1868/98 the first respondent had no title, right, interest or possession over the petition schedule property. It follows that the right of the second respondent over the petition schedule property is not affected by the attachment as per Ext A3 document. The third respondent has contended that she purchased the petition schedule property from the second respondent after paying valuable consideration and without notice of the attachment order in IA 1868/98 in 0.O.P.628/98. The encumbrance certificate produced by the third respondent do not reveal that the attachment was effected over the petition schedule property. In such circumstance it cannot be held that the right of the third respondent over the petition schedule property will be affected in pursuance of Ext. A3 order. It follows that the petitioners are not entitled to get a declaration as claimed in the petition with respect to the petition schedule property. They are also not entitled to the prohibitory injunction pertaining to the petition schedule property as against the third respondent. The points for consideration are answered against the petitioner.” 22. The said findings are also in tandem with the facts ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 26 ``` as enumerated above for the reason that Govinda Naik , at any point of time when O.P.No.628/1998 was filed, was not the owner of the property. 23. Be that as it may, it remains a mystery as to why and under what circumstances wife did not choose to seek execution of the decree dated 30.06.1999 rendered in O.P.No.628/1998. Appellate Court cannot examine the veracity of the decree while sitting in appeal dealing with judgment and decree dated 15.05.2008 rendered in O.P.No.1415/2004 for, the charge could not have been created by ordering the enforceable claim under the attachment passed in O.P.No.628/1998. 24. The arguments of the learned counsel ie., nonapplicant, the aforementioned omissions/errors cannot be brought under the provisions of Order 47 Rule 141 for examining the veracity of judgment, does not merit any acceptance and hereby rejected. ``` RP NO.677 OF 2022 & Mat.A No.607 of 2008 ``` ``` 27 ``` 25. Accordingly review petition is allowed. Since we have rendered a finding on merit, the judgment and decree dated 15.05.2008 rendered in O.P.No.1415/2004 is upheld. Mat.Appeal No.607 of 2008 stands dismissed. Sd/- **AMIT RAWAL JUDGE** Sd/- **C.S. SUDHA JUDGE** nak