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2011 DIGILAW 662 (MAD)

S. Mylathal v. N. Ayyasamy

2011-02-08

S.TAMILVANAN

body2011
Judgment :- 1. The Civil Revision Petition has been preferred against the order and decreetal order dated 01.04.2008 made in E.P. No.33 of 2006 in O.S. No.60 of 2004 on the file of the Additional District Court/Fast Track Court No.IV, Tiruppur under Section 115 of C.P.C. 2. It is an admitted fact that the respondents 1 and 2 herein had filed the suit in O.S. No.60 of 2004 against one Chandrasekaran/ deceased, seeking a decree for specific performance based on an agreement for sale. After the trial, the suit was decreed directing the defendants therein to refund an advance amount of Rs.6,00,000/- received from the respondents herein with 12% interest from 19.04.1999 to 01.01.2002 and subsequent interest at 6% from 02.01.2002 till the date of realisation. Pursuant to the decree, respondents 1 and 2/decree holders, filed an execution petition in E.P. No.33 of 2006 to bring the property for sale in order to realise the decree amount. After the decree, both the defendants have executed a settlement deed in favour of the third respondent who is the mother of the defendants therein. Pending disposal the first defendant/ Chandrasekaran died. After hearing both sides, by the impugned order, the court below attached the property in order to bring the property for sale to realise the decree amount. Challenging the said order, the petitioner/third party has filed this revision petition. 3. Mr. N. Manokaran, learned counsel appearing for the petitioner submitted that the judgment debtors had executed a settlement deed in favour of the petitioner herein. According to him, on the date of executing the settlement deed, there was no attachment over the property. Therefore, pursuant to the decree, as per Section 64(1) of the Code of Civil Procedure, the property described in the execution petition cannot be brought for sale and the attachment made by the court below is also not binding on the petitioner as the petitioner was not a judgment debtor on the date of attachment ordered by the court below. 4. Per contra, Mr. 4. Per contra, Mr. A.K. Kumaraswamy, learned counsel appearing for the respondents 1 and 2 submitted that the suit was filed seeking a decree for specific performance of a contract with an alternative relief for the refund of advance amount with interest, there was a charge created over the property, since it was only a settlement deed executed by the judgment debtors in favour of their mother, in order to defeat the suit claim. 5. Learned counsel appearing for respondents 1 and 2 also drew the attention of this court to Section 55(4) of the Transfer of Property Act. According to the learned counsel appearing for respondents 1 and 2, the alleged transfer by way of settlement by the judgment debtors in favour of their mother is only a fraudulent transfer without getting any consideration and therefore under Section 53 of the Transfer of Property Act, the property is answerable to satisfy the decree amount. It is not in dispute that the suit for specific performance had been filed by respondents 1 and 2 in respect of the property described in the execution petition and after the trial the suit was decreed and the alternative relief to refund the advance amount with interest was decreed which reached its finality. However, the judgment debtors without satisfying the decree by making payment, simply executed the settlement deed in favour of their mother. Section 53(1) of Transfer of Property Act, 1882 reads as follows: "(1) 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 time being in force relating to insolvency......" 6. In the instant case admittedly the judgment debtors having suffered a decree in the suit seeking specific performance, executed the alleged settlement deed in favour of the petitioner who is none other than the mother of the judgment debtors, without discharging the debts and satisfying the decree. They simply executed the settlement deed in favour of their mother. In the instant case admittedly the judgment debtors having suffered a decree in the suit seeking specific performance, executed the alleged settlement deed in favour of the petitioner who is none other than the mother of the judgment debtors, without discharging the debts and satisfying the decree. They simply executed the settlement deed in favour of their mother. In the aforesaid circumstances, as contended by the learned counsel appearing for respondents 1 and 2, it is to be construed that the intention of the judgment debtors was only to defeat or delay the creditors namely the respondents 1 and 2, who have obtained the decree for refund of the advance amount with interest and cost and further it cannot be construed as a bonafide transfer in good faith for valuable consideration in favour of any third party. Had there been a bonafide intention, the judgment debtors would not have settled the property in favour of the petitioner, their mother without discharging the amount payable to the respondents 1 and 2/decree holders in the suit. 7. Learned counsel appearing for the petitioner drew the attention of this Court to the decision of this Court reported in 2006 (5) CTC 245 (Pinna Thevar vs M.S. Maniam and another) and referred to Section 64 of the Code of Civil Procedure, wherein this Court held that the said provision is applicable in a case where the attachment was made prior to the sale of the property to a third party. In the said case, sale deed was executed on 21.10.2003, registered on 27.10.2003 and subsequent attachment order was passed on 14.11.2003 came to effect on 25.11.2003 would not bind a third party. The aforesaid decision is not applicable to the facts and circumstances of this case, since there is no passing off consideration in the alleged transfer in favour of the judgment debtors as the same was only a settlement deed made in favour of their mother. The aforesaid decision is not applicable to the facts and circumstances of this case, since there is no passing off consideration in the alleged transfer in favour of the judgment debtors as the same was only a settlement deed made in favour of their mother. In the case of (Pakkiri) Mohideen Tharangan and another vs Mohammad Mustappah Rowther and others, AIR 1930 Madras 665, this court held that even if there is only one creditor, the act of the debtor in transferring his properties to a stranger with a view to secrete the same and defeat the creditor would be a fraudulent transfer and as such the transfer could be set aside, if the transferee had notice of the circumstances and of the judgment debtor's evil design. 8. In the instant case, the transferee is only the mother of the judgment debtors and there was no passing off consideration, as it is only a settlement deed and it is clear from the admitted facts that the judgment debtors had executed a settlement deed in favour of their mother in order to defeat the legitimate claim of the decree holders/the respondents 1 and 2 herein. 9. On the aforesaid facts and circumstances, I am of the view that there is no error or illegality in the impugned order passed by the court below attaching the property and bring it for sale in order to realise the decree amount with interest and cost. Hence, the revision petition is liable to be dismissed. Accordingly, the revision petition is dismissed. No order as to costs. Consequently, connected M.P. is also closed. 10. Learned counsel appearing for the respondents 1 and 2 bring it to the notice of this Court that the matter is pending for a long time and seek a direction to the court below to dispose the execution petition within a time frame. 11. If the E.P. is pending, the court below shall dispose the same according to law within a period of three months from the date of receipt of a copy of this order.