P.A. TO JUDGE v. CHITAMBARESH, J

V. CHITAMBARESH, J--------------------------------OP(C) NO. 4218 OF 2011------------------------------------Dated this the 29th day of November, 2012JUDGMENTThe property of extent 3 cents 750 square metres insurvey No. 299/1-10-17 of Thycad village with a buildingthereon (TC 15/1881) was attached before judgment on21.06.2002. The attachment was made in O.S. No. 286/2002on the file of the court of the Principal Subordinate Judge ofThiruvananthapuram which was a suit for realisation ofmoney. The plaintiff contended that a sum of ` 1 lakh is duefrom the defendant under two cheques dated 15.05.2002 thatwere dishonoured.2.But the property had been gifted by the defendantlong before by settlement deed (document No. 2532/97/SRO,Chalai) dated 08.10.1997 in favour of his two minor children.Only a life estate had been reserved in favour of the defendantand his wife in the settlement deed so executed and no powerof revocation was incorporated. It is trite law that very littleevidence is required to show that a settlement/gift deed hasbeen acted upon unless it is burdensome or onerous. 2OP(C) No. 4218/20113.The defendant thereafter unilaterally cancelled thesettlement deed by the execution of a cancellation deed(document No. 1782/01, SRO, Chalai) dated 30.06.2001. Thewife of the defendant is seen to have attested the cancellationdeed as a witness. What is the efficacy of such a cancellationdeed if the settlement deed had already taken effect is a matterto be probed.4.The two minor children represented by their motherhad earlier preferred a claim petition purporting to be underOrder XXI Rule 58 (4) of the Code of Civil Procedure. The claimwas preferred at a time when the property was under attachmentbefore judgment. It is not clear as to whether the mother wasappointed by the court as the guardian of the minors in suchproceedings. The fact remains that the said application was laterdismissed as withdrawn on 24.02.2003 without any adjudicationwhatsoever.5.The suit for realisation of money was eventuallydecreed on 21.03.2003 and the attachment of the property wasmade absolute. The property was sold in execution and the 3OP(C) No. 4218/2011decree holder himself bid it in auction. The sale was confirmedon 07.12.2005 even though delivery of the property has nothitherto been effected.6.It is under these circumstances was the presentexecution application (E.A. No. 499/2006) filed invoking Section47 of the Code of Civil Procedure and other grounds. The minorsare represented in this execution application by their uncle. Thisis obviously because their mother had acted as a witness in thecancellation deed unilaterally executed.7.This court by judgment in WP(C) No. 35411/2007permitted the uncle to represent one minor since the other hadattained majority. The court below has by the order impugneddismissed the execution application. The court below wasswayed by the fact that an earlier claim put forward at the timeof attachment before judgment was dismissed as withdrawn.8.The core question is whether the defendant/judgmentdebtor had any saleable interest in the property sold in executionat the material time. The property had been settled in favour ofhis minors five years prior to the institution of the suit. The 4OP(C) No. 4218/2011plaintiff has no case that the execution of the settlement deed isa fraudulent transaction. The judgment debtor had a disposingpower only if the unilateral cancellation deed was valid.9.Section 60 of the Code of Civil Procedure is clear thatonly the property over which the judgment debtor has adisposing power would be proceeded against. Propertybelonging to another cannot be knocked off in an execution sale.Such a sale would be fraught with fraud and irregularity. Fraudvitiates all solemn acts done by court as held by the SupremeCourt in Hamsa Haji's case.10.The question whether the defendant has alreadyrepaid the money covered by the dishonoured cheques to theplaintiff/decree holder is disputed. The minors rely on the plaintaverments in O.S. No. 1531/2011 on the file of the court of theSubordinate Judge of Thiruvananthapuram. That is a suit filedby the tenant occupying the property for realisation of money.The averments revealed that a sum of ` 2 lakhs was paid to thejudgment debtor to clear the debt in O.S. No. 286/2002. 5OP(C) No. 4218/201111.I feel that a deeper probe as regards the settlementdeed and its cancellation is absolutely essential. The questionwhether the judgment debtor had any saleable interest in theproperty at the material time is relevant. I have no other optionbut to set aside the impugned order and remand E.A. No.499/2006 in E.P. No. 15/2004 in O.S. No. 286/2002. The partieswill appear in the court below on 01.01.2013 and sufficientopportunity would be afforded to amend the pleadings and let inevidence.The Original Petition is allowed. No costs.V. CHITAMBARESH JUDGEncd