Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 871 (KER)

Soniya D/o. Somarajan v. Saranya, D/o. Sasi

2019-10-28

ANNIE JOHN, K.HARILAL

body2019
JUDGMENT : K.HARILAL, J. 1. The appellant herein is the claim petitioner, who filed E.A.No.121/18 in E.P.No.52/17 in O.P.No.778/15 of the Family Court, Kollam. The said claim petition was filed on the ground that on the date of filing the OP, in which a conditional order of attachment was passed, the appellant was the absolute title holder in possession of the attached 1st property and not the 3rd respondent herein. The respondent herein alleged that the 3rd respondent herein is the title holder in possession of the property attached and the conditional order of attachment was passed on that erroneous affidavit filed by the 1st respondent. According to the appellant, she has purchased the said property from the 3rd respondent by virtue of sale deed No.2407/2015 on 11.12.2015 and the OP wherein the conditional order of attachment was passed on 6.1.2016, was filed only on 21.12.2015. Thus, according to the appellant, even before the filing of the OP, the property was transferred to her by virtue of a settlement deed. Now, after the passing of the decree, the 1st respondent filed E.P., and then only, the appellant came to know that an attachment has been made earlier in respect of her property. Therefore, the attachment is liable to be lifted as, on the date of attachment, the appellant herein is the absolute owner in possession of the property and not the 3rd respondent herein. The 1st respondent filed objection admitting the date of filing the OP and the date of settlement deed. But no contention was raised to the effect that with an intent to defeat the OP that may be filed against her mother, the mother transferred the attachment schedule property in favour of the appellant herein. After considering the rival claims, the Family Court dismissed the claim petition on a finding that the transfer is by the mother in favour of the daughter and so, the transfer cannot be said to be a genuine transfer. The legality and correctness of the aforesaid finding are challenged in this Mat. Appeal. 2.Heard the learned counsel for the appellant and the learned counsel for the respondents. 3. What is the scope and extent of consideration in an application seeking an order of attachment of immovable property, before judgment, under Order XXXVIII Rule 5 of CPC? The legality and correctness of the aforesaid finding are challenged in this Mat. Appeal. 2.Heard the learned counsel for the appellant and the learned counsel for the respondents. 3. What is the scope and extent of consideration in an application seeking an order of attachment of immovable property, before judgment, under Order XXXVIII Rule 5 of CPC? It is not disputed that the settlement deed in favour of the appellant was executed on 11.12.2015 and the OP against the appellant was filed on 21.11.2015 only. In short, the transfer of the attached property in favour of the appellant was effected before the institution of the OP. In other words, on the date of filing the attachment petition, actually, the appellant herein/claim petitioner is the title holder in possession of the attached property. It follows that the attachment before judgment was based on an affidavit containing erroneous sworn statement, in respect of the ownership of the property and the court believed that erroneous sworn statement and passed the conditional order of attachment. More importantly, the affidavit expressing apprehension as to alleged sale of the property is made without knowing the true owner of the property and it will cut the root of the apprehension. In short, the apprehension as to sale of the attachment schedule property is unfounded and made without bonafides. It is also very important to note that no allegation was raised in the objection to the claim petition to the effect that the transfer was made fraudulently before filing the OP or attachment petition, with a malafide intention to defeat an order of attachment that may be made against the attached property. 4. However, in the matter of attachment, statutory mandate is that the defendant may, with an intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property or is about to remove the whole or any part of the property from the local limits of the jurisdiction of the court. Therefore, what is inferable from the statutory mandate is that in the matter of attachment before judgment, the defendant must be the absolute owner in possession of the property and he, with an intent to obstruct or delay the execution of the decree that may be passed against him, is about to dispose of the whole or any part of the property. If the defendant is not the owner of the property and any other person, who is not a party to the suit is the owner of the property, the bonafides of the apprehension as to the alleged intended sale will be lost, and no reliance can be placed on that affidavit made by the petitioner under Order XXXVIII Rule 5. That apart, the genuineness of an earlier transfer shall not come into consideration, in an application seeking an order of attachment and no enquiry shall be conducted in this respect. 5. In the instant case, on the date of attachment, the 3rd respondent is not the title holder in possession of the property and the appellant, who is not a party to the suit, is the title holder in possession of the property. Therefore, the appellant is entitled to get the attachment lifted. But the court below went wrong in dismissing the petition on a finding that transfer cannot be genuine. The family court should not have arrived at such a finding, in an attachment petition, when the party, who moved the court for an attachment order, has no such contention. 6. In the above view, the impugned order dated 8.5.2019 is set aside and E.A.No.121/2018 in E.P.No.52/2017 in O.P.No.778/2015 will stand allowed. Consequently, the order of attachment is lifted. The Family Court, Kollam is directed to intimate the SRO concerned forthwith that the order of attachment made absolute is lifted. Appeal is disposed of with the above observation.