George Antony and Others vs K. F. C. and Others

Varghese Kalliath, J

All these appeals arise from execution proceedings in E. P. No, 112/86 in O. S. No. 75/80. The Execution Court considered the applications filed by the appellants in E A. Nos. 22. 23 and 24 of 1988 and passed a common order. All the Execution Applications are against the attachment and sale of the property pursuant to the decree in O. S. No. 75/80 obtained by the 1st respondent-decree holder No. 1. E. A. No. 23/8'' is by the wife of the 1st judgment-debtor and E. A. Nos. 22 and 24 of 1988 are by the sons of the 1st judgment-debtor. They made the claim under Order 21 Rule 58. They contended that they are the owners of the property and they became the owners of the property by virtue of three sale deeds on the same day, namely, 14-6-1983. They purchased the property from the 1st judgment-debtor. The sale deeds are Exts. A1, A2 and A3. Enquiry under Order 21 Rule 58 requires a proper investigation as regards all questions including questions relating to right, title or interest in the property attached analysing between the parties in the proceedings or their representative.

Construing this provision Balakrishna Menon, J. said in. Ithakku Abraham v. Kesavan Damodaran (1987 (1) KLT 709) that Rule 58 of Order 21 as amended by the CPC makes it clear that all questions (including questions relating to right, title and interest in the property attached) arising between the parties to a proceeding or their representatives under the rule and relevant to the adjudication of the claim or objection shall be determined by the court dealing with claim or objection and not by a separate suit. Sub ''Rule (4) of Order 21 Rule 58 makes it clear that where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

From the rule it is clear that the court is obliged to consider the title with all relevant matters as if it is a suit and considering the proceedings as a suit normally the claimant is to be treated as the plaintiff and the attaching decree-holder as the defendant When the attaching decree-holder is the defendant it is well settled that the decree-holder in that circumstance can take up all grounds to defend the claim including the ground available to him u/s 58 of the Transfer of Property Act. It is also well settled that such a defence need not be in a representative capacity on behalf of all the creditors of the judgment-debtor. This is the law on the subject. Now we shall consider the significant facts of this case. The suit was instituted as early as in 1980. The suit was one for realisation of certain amounts borrowed by the husband of the claimant in E. A. No. 23/88 and the father of the claimants in E. A. Nos. 22 and 24 of 1988. The decree-holder obtained a decree on 26-3-1982. After obtaining this decree it is seen that the judgment-debtor has executed sale deeds on 14-6-1983 in favour of his wife and children. The Execution Court has found that the considerations shown in the sale deed are inadequate. Further the Execution Court has also considered the question whether the claimants-purchasers had sufficient resources to pay the considerations stated in the sale deeds. From the circumstances revealed in the case the Execution Court rightly came to the conclusion that the sale deeds were made to defeat and defraud the creditors. Holding so, the Execution Court dismissed all the claim applications.

We have no hesitation to hold that what the Execution Court has done is perfectly legal and correct both on facts and law. In the circumstances these appeals have to be dismissed and we do so.