Civil Revision Petition No. 1840 of 2005 · High Court
Case at a glance
Provisions considered
- Code of Civil Procedure, 1908 s. 115; O. 21 rr. 37, 38
- Transfer of Property Act, 1882 s. 53
Judgment
Cause title
Heard both sides. The petitioner, who is the appellant in A.S.No.26 of 2000 on the file of the Senior Civil Judge, Chodavaram, filed this revision under Section 115 C.P.C. seeking to assail the order, dated 16.02.2005 passed in I.A.No.5 of 2005 in A.S.No.26 of 2000 in regard to the payment of stamp duty on the one-sixth share of the entire properties. Though several contentions are sought to be urged on behalf of the petitioner and further repelled by the respondent, the fact remains that the main appeal itself is pending on the file of the lower appellate Court and this Court granted interim suspension of impugned order on 29.07.2005 C.R.P.M.P.No.2464 of 2005 and the said order is still subsisting, and the respondent has not taken any step seeking to vacate the same. In view of the same, instead of going into the merits of the case, it is felt desirable that a direction be given to the lower appellate Court to dispose of the main appeal itself, as early as possible.
Hence, the civil revision petition is disposed of, directing the lower appellate Court to dispose of A.S.No.26 of 2000, within a period of two (2) months from the date of receipt of a copy of this order. It is made clear that the interim order granted by this Court on 29.07.2005 shall remain in force till the disposal of the appeal. There shall be no order as to costs. __________________ B.PRAKASH RAO,J Dated: 22.07.2010 THE HON’BLE SRI JUSTICE B.PRAKASH RAO CIVIL REVISION PETITION No.4606 of 2008
ORDER:
Heard both sides and at their request, the Civil Revision Petition itself is taken up for disposal at the admission stage. The petitioner is the decree holder. He filed this revision, seeking to assail the order, dated 30.09.2008, passed by the Principal Junior Civil Judge, Repalle, dismissing E.P.No.162 of 2007 in O.S.No.463 of 2005, filed under Order 21 Rules 37 and 38 C.P.C., wherein the petitioner sought to arrest and detention of the respondent-judgment debtor, who is the respondent herein. The brief facts are that the petitioner had obtained a decree for recovery of a sum of Rs.20,350/-, on 17.10.2006. Since the liability was not discharged, he laid the present execution petition for arrest of the respondent, in view of the fact that in spite of having sufficient means, he is avoiding to discharge the same. The Court below, after considering the entire material on record, came to the conclusion that the properties held by the respondent were already transferred in the name of his daughters on 12.12.2007 and 24.11.2007, and no property is in his possession and dismissed the execution petition since the petitioner failed to establish that the respondent has sufficient means from the date of decree to pay the amount. Questioning the same, the present revision has been filed. From a perusal of the entire material available on record, it transpires that admittedly, the petitioner obtained decree on
17.10.2006, whereas the alleged transfer of property in favour of daughters of the respondent is on 12.12.2007 and 24.11.2007 i.e. after filing the execution petition. Now the question that falls for consideration is as to whether the transfer of the property in favour of the daughter of the respondent would in any manner relieve the respondent from discharging the liability under the decree? The order impugned clearly discloses that the judgment debtor, after passing of decree, transferred his property in favour of his daughters, but that cannot be a ground to defeat or delay the creditor, inasmuch as, as per Section 53 of the Transfer of Property Act, 1882, every transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable. This aspect has not been considered by the court below. On that ground, the civil revision petition is allowed and the order under revision is set aside. The matter is remanded to the Court below for fresh consideration. The Court below shall take into consideration the aforesaid observation and pass appropriate orders on merits after giving opportunity to both sides. Dated: 26.03.2009 Kdl __________________
(B.PRAKASH RAO,J)
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
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