The grievance of the petitioner is that after having represented that the Bank who is the decree holder in the suit wanted no decree against the petitioner and the suit against the petitioner having been dismissed, the Bank cannot now turn around seeking attachment and sale of the property which belongs to the petitioner herein. 2. The petitioner points out that even prior to the attachment effected in O.S.No.295/2009 which was one for realisation of money from the defendants 1 and 2, the property had been sold to the petitioner herein. It was under these circumstances that the Bank had given up the relief as against the petitioner. Having done so, impleading the petitioner in the E.P proceedings and the proceeding as against the property belonging to the judgment debtor cannot have support in law. It is also contended that the objections filed by the petitioner to bring the property for sale which is evidenced by Ext.P7 have not been considered and the right put forward by the petitioner has not been adjudicated. Learned counsel for the petitioner pointed out that the Bank is not entitled to proceed against the property because it did not belong to the judgment debtor as on the date of attachment and also that since the objections of the petitioner produced as Ext.P7 have not been considered, the order Ext.P6 now passed ordering sale of the property cannot be sustained.
3. Sri.K.K.Chandran Pillai, learned Senior Counsel appearing for the decree holder contended that by referring to the judgment, copy of which is produced as Ext.P3, the petitioner herein got herself impleaded in the suit and thereafter did nothing in the matter. Learned Senior Counsel did not dispute the fact that the Bank did not seek any relief as against the petitioner and the suit was dismissed as against the 3rd defendant who is the petitioner herein. However, learned Senior Counsel pointed out that the property was attached as if it belonged to defendants and 2 and if the petitioner had a claim, she had to prefer the claim in accordance with law and get it adjudicated. In that suit, she could have agitate the same thing. But she did not do so. According to the learned Senior Counsel, the Bank has got a case that the transfer is only with the intention of defeating the creditor and the Bank is not bound by the transfer. Accordingly, it is contended that there is no merit in the petition.
4. Even assuming that the property was purchased by the petitioner prior to the attachment, in the suit the Bank proceeded as if the property continued to belong to defendants 1 and 2 and the attachment was effected. From the records, it is seen that the petitioner was the 3rd defendant in the suit and the suit against her was dismissed as no relief was sought for. From the judgment produced, it is seen that the petitioner has got herself impleaded in the suit by filing I.A.No.1698/2009 and after she was impleaded, she did nothing in the matter. If the petitioner had a case that the property was not liable to be attached, it was for her to get it adjudicated at that point of time after knowing that the property has been attached in the suit. She did nothing at that point of time.
5. True, suit was dismissed as against the petitioner. But it must be remembered that the definite stand of the Bank was that the property still belongs to defendants 1 and 2 and it is significant to notice in the suit that if the petitioner is the owner of the property, she could have produce document of title in her favour and establish that the defendants do not have title to that property at that point of time. It is also seen from the records that the transfer was effected in the suit and agreement was also executed. Whether transfer was proper is a different question. But the proper remedy available for the petitioner was to get her claim adjudicated in the suit itself and establish that the property is not liable to be attached.
6. In that case the Bank would have had an opportunity to show that the transfer is hit by Section 53 of the Transfer of Property Act. Even assuming that it was not done as the petitioner is shown as a party to the execution proceedings, on receipt of notice, she had entered appearance and filed Ext.P7 objections which the court below was bound to consider. From the impugned order, it does not appear that the said objection has been considered. An enquiry was absolutely necessary in the light of the fact that the petitioner had a contention that the property at the relevant time did not belong to defendants 1 and 2 and it belongs absolutely to her. She is not precluded from agitating the said issue since that issue was not considered at the trial stage. At any rate, the petitioner is entitled to have her contentions considered by the court below. Having not done so, the court below was not justified in passing the impugned order.
For the above reasons, Ext.P6 order is set aside and the matter is remanded to the execution court to enable the petitioner to establish her contentions evidenced by Ext.P7. Both parties will be at liberty to adduce evidence. The court below may make every endeavour to dispose of the matter in accordance with law as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment.
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P.BHAVADASAN JUDGE smp