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Judgment
This appeal is preferred by the decree holder in E.P.No.65/2011 challenging the order dated 20.12.2012 passed by the Addl. District Judge(Ad hoc-
III), Kasaragod, allowing the claim petition filed by the first respondent for declaration that schedule property was not liable to be attached and sold in
execution of arbitral award passed in A.P.No.24/2000.
The first respondent in this appeal, the claim petitioner purchased the schedule property as per Ext.A1 sale deed dated 18.11.2004 and claimed to
be in absolution ownership and possession of the property. She contended that the decree holder has no right either to attach or bring the property to
sell inasmuch as she is a bona fide purchaser of property for value.
The appellant, who is the first respondent in E.A.No.38/2012, the claim petition contended that the property is in actual possession of the vendor of
the claim petitioner and a sham document was executed fraudulently and collusively with a view to defeat the rights of the creditor. This contention of
the decree holder was not accepted by the court below and it held that the alienation effected by the judgment debtor was not proved to be vitiated by
fraud or collusion. The claim petition was consequently dismissed.
On the side of the claim petitioner, Ext.A1 and A2, the two sale deeds in respect of the property were marked. The claim petitioner was examined
as CPW1. No evidence was adduced by the respondents in E.A.No.38/2012.
The contention raised by the learned counsel for the decree holder/appellant is that the ground on which the claim petition was dismissed by the
court below is that decree holder failed to take steps for attaching the property at the very beginning of the institution of the arbitral proceedings and
secure a charge decree. The finding that the sale deed executed by the judgment debtor, the second respondent in E.P.65/2011 was fraudulent, is
therefore, not sustainable.
I heard the learned counsel for the first respondent/claim petitioner also.
The claim petitioner is a second purchaser, who purchased the property from the vendor of second respondent in E.A.No.38/2012 and party to the
arbitral award passed in A.P.No.24/2000. The award passed against the second respondent became final, following dismissal of appeal filed by him.
During the pendency of appeal, the judgment debtor sold property to claimant's vendor. From the vendee of judgment debtor, claimant purchased
property under Ext.A1 on 18.11.2004.
That means, there are two sale transactions intervening between the claim petitioner and the original judgment debtor. Under Section 53 of the
Transfer of Property Act, 1872, a transfer of property effected by the debtor which has the effect of defeating the claim of the creditor is voidable at
the option of the creditor, provided the transaction is shown to be fraudulent. The burden to prove that the transaction was fraudulent and was
intended to defeat the interest of the creditor is upon the person who seeks to assail the document. No evidence was brought forth by the appellant to
substantiate its contention that the sale deeds executed by the judgment debtor was voidable under law.
It is true that the court below among other things mentioned that the property was not got attached at the commencement of the arbitral
proceedings nor the award charged in the property. Apart from this, there is clear finding from the impugned order that decree holder failed to prove
that the sale transactions were voidable.
Exts.A1 and A2 documents show that they were executed for consideration. Even assuming for a moment that the judgment debtor had an
intention to defeat the rights of the decree holder also, it is hard to accept the contention of the decree holder that the claimant, subsequent purchaser
took the property with the knowledge of the award passed in A.P.No.24/2000. The burden to show that Ext.A1 was taken with fraudulent intention to
defeat the decree holder has not been discharged. There are reasons to assume that the claim petitioner is a bona fide purchaser for value.
On re-appreciation of evidence, I do not find any ground for taking a different view and interfering with the finding of the court below that the
claim petitioner in a bona fide transferee for value and has acquired absolute ownership and possession of the property. The impugned order is not
worth interfering for any reasons whatsoever.
In the result, the appeal fails and it is dismissed. No costs.
All pending interlocutory applications will stand closed.