Judgment :- 1. The question for consideration in this writ appeal is whether there is any justification for attaching the properties alleged to belong to the appellants by virtue of a transfer said to have been effected on 19 3 1970 by the husband of the first appellant and the father of the second appellant in their favour. The properties covered by the alleged transfer were attached under the Kerala Revenue Recovery Act, 1968, for short the Act, on 8 91971. The petitioner prayed for cancellation of that attachment in O. P. No.4994 of 1971. That petition was dismissed in limine by Poti J. on the ground that S.44 of the Act was an answer to the contentions of the appellants. It is sub-sections (2) and (3) of S.44 that have been relied on. These sub-sections read as follows: "44. Effect of engagements and transfers by the defaulter. (1) (2) Any transfer of immovable property made by a defaulter after public revenue due on any land from him has fallen in arrear, with intent to defeat or delay the recovery of such arrear, shall not be binding upon the Government. (3) Where a defaulter transfers immovable property to a near relative or for grossly inadequate consideration after public revenue due on any land from him has fallen in arrear, it shall be presumed until the contrary is proved, that such transfer is made with intent to defeat or delay the recovery of such arrear, and the Collector or the authorised officer may, subject to the orders of a competent court, proceed to recover such arrear of public revenue by attachment and sale of the property so transferred, as if such transfer had not taken place:" 2. In order that these sub-sections may apply there must be public revenue due on any land in arrears. The attachment in this case has been effected for alleged arrears of abkari dues. The definition of the term "public revenue due on land" is in S.2 0) of the Act which is in these terms: 2 0) "public revenue due on land" means the land revenue charged on the land and includes all other taxes, fees and cesses on land, whether charged on land or not, and all cesses or other dues payable to the Government on account of water used for purposes of irrigation." 3. S.28 of the Abkari Act, 1077 makes provision for recovery of duties, taxes, fines and fees payable to the Government under the provisions of that Act and all amounts due to the Government by any grantee of a privilege or by any farmer under that Act from the person primarily liable to pay the same, as if it were arrears of land revenue. 4. Even reading S.28 and treating it as part of the Revenue Recovery Act it is difficult to accept the contention that the attachment was effected for any arrears of public revenue due on land. S.28 of Abkari Act, Act 1 of 1077 only enables abkari dues being recovered as if they were arrears of land revenue. This section does not convert abkari dues into public revenue due on land. Only if the amounts claimed are arrears of public revenue due on land S.44 will be attracted. 5. Now turning to S. S it is clear that under the Act only the defaulter's land can be attached. The land had ceased to be that of the defaulter before the attachment. The attachment was only on 8-9-71, whereas the transfer was on 19 31970. So under the Act no attachment could have been made. We do not conceive that the attaching authority in the absence of statutory provision similar to S.44 (which does not apply when the attachment is for arrears of abkari dues) is entitled to consider the question, whether the transfer was in fraud of creditors or was sham. These are matters which can only be dealt with by a civil court. 6. Counsel for the respondent brought to our notice S.46 of the Act and contended that it is open to the appellants to file a claim petition. It was certainly open to the appellants to file a petition under S.46 of the Act. But the failure to do so will not by itself preclude the appellants from contending before this Court that the attachment under the Act was effected without authority. In the circumstances of the case, we do not think we should stultify the appellants on the ground that they could have moved the appropriate authority, under S.46 of the Act. 7. In the light of the above, we set aside the judgment under appeal, allow the original petition and set aside the attachment effected on 8 9 71. In the circumstances of the case, we do not think we should stultify the appellants on the ground that they could have moved the appropriate authority, under S.46 of the Act. 7. In the light of the above, we set aside the judgment under appeal, allow the original petition and set aside the attachment effected on 8 9 71. We direct the parties to bear their respective costs throughout. Allowed.