Petitioner is concerned with the attachment on two items of property lying adjacent, and purchased by him respectively in 2009 and 2010. Exts.P1 and P2 are the sale deeds by which the petitioner purchased certain properties from the 5th respondent and his mother. The purchase made in Ext.P2 was of the 5th respondent alone, and that in Ext.P2 belonged to the 5th respondent; his mother. 2. The petitioner, having purchased the said properties, filed an application under the Transfer of Registry Rules for effecting mutation which is evidenced by Ext.P2. Petitioner is said to have gone abroad for employment subsequently, and on return, he was confronted with Ext.P4 demand notice issued under the Kerala Revenue Recovery Act, 1968 and an attachment having been effected on the said property. Evidently, since mutation was not effected, there were a number of attachments in the property, including that made under the Revenue Recovery Act. It is submitted that all other attachments made by the various Civil Courts have been settled and what remains is the attachment made under the Revenue Recovery Act which is pursuant to Ext.P5.
3. On a reading of Ext.P5, it is revealed that the 5th respondent was a contractor who had been awarded a work by the State and which stood terminated as per Ext.P5. Ext.P5 also indicates that damages were mulcted on the 5th respondent. It is Ext.P5 order which led to the attachment on the property.
4. The petitioner was directed to produce the encumbrance certificate of the property, which is produced as Ext.P6. It clearly indicates the date of attachment made by the revenue authorities as 20.5.2013.
5. The attachment has been made and continued only for the reason that Section 44 of the Revenue Recovery Act mandates any transfer to defeat recovery under the Act to be deemed a sham transaction. Section 44 however, specifically speaks of transactions entered into after service of the demand notice. Evidently in the present case, the purchase made by the petitioner was in the years 2009 and 2010 as seen from Exts.P1 and P2. The basis for issuance of revenue recovery proceedings against the 5th respondent itself is Ext.P5 which is dated 26.9.2011. Hence no demand notice contemplated under the Revenue Recovery Act could have been served on the 5th respondent prior to the same.
The above proposition has been declared by this Court in Spl.Tahsildar v. Vasu (2006 (4) KLT
557). In such circumstances, attachments effected by the Government on the property cannot be sustained.
6. For the above reasons, it is declared that the dues of the 5th respondent sought to be recovered as per Ext.P4 cannot be proceeded against the properties covered under Exts.P1 and P2. The transfer of the properties covered under Exts.P1 and P2 are long prior to the liability mulcted on the 5th respondent by Ext.P5. The transfer as per Exts.P1 and P2 cannot be deemed to have been made to defeat recovery. The State definitely would be entitled to recover such amounts from the 5th respondent.
Writ petition allowed.
K.VINOD CHANDRAN, Judge Mrcs