AS/12/1955 of KUNJU MEETHIAN METHARU MOHAMMED METHARU Vs THE BANK OF DECCAN LTD. on 23 March 1955

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IN THE HIGH COURT OF JUDICATURE OF TRAVANOJRE-COCHIN

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,BeforeThe Hon 'ble Shri K.T.·Koshi.Chief Justice and

..The Hon' ble ShriG.Kumara Pillai, Judge.

12 of 1955.

lpoeal Suit No.

O.S.No.15 of 1102 of theIfottayam District Court.

Appellant -

12thR defendant

Kunju r,:eethian Eetharu Mohammed Eetharu, residing at"I.Te1iyil,Aroor Muri,Aroor Pakuthy.

Mangalathu

Bhoothalingam Iyer.

By advocate Shri S.

Respondent - plaintiff

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The 3ank of Deccan Ltd., iottayam, represented by its Ifaneging D;i.rector; Chandy J.tty.

By advocclte Shri K.T.

Ninan.

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This appeal suit having been finally heard on 23.3.1955

the court on 23.3.1955 delivered the following I

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'{Koshi, c.J. and Kumara Pillai, J.)••

12 ot:, 195,2 •

Appeal fouit No.

Delivered bv ~umara Pillai, J.

This appeal arises out of an order in execution.The appellant is additionel defendant 12, who wasim-pleaded in -execut:ion after the death of defendant 3 asthe latter's leal representative.The order appealedagainst is one disaissing a claim made by aa&ition.al de-f'enoa.:at12 to a property which tras ?ttached in executionas belonr,ing t,o ci.efenc}ar.t 3.ccordin to the appellant,he -purchased this property in execution ofdecree hehimself has obtained on a hyothecation bond excited byhis deceased fether,defei1.dant 3art,.ha p.•.rop3rt;;,• balon....e_,dto him at the time of te attachmeot i: t"1s c3s ad wasnotblib?eobattachedndoin executionohdecree_±ntHisesse.The decree-holder is;:l Joiat StockBank, known as ThaBank of Deccan Ltd.The Bark.,pposedthe claim contending tht the decree acourt sale re-lied upon by the appeliant were sham transactions broughtinto existence for the nurpose of shielding the propertyfrom the creditors of ciefendr:..nt3 e.nd that notwithstandingthe said decrea and court sale the property belonged todefendant3 and was lial to be attached and sold in exe-cut ion of the decree in this.c:Jse.This cont t1on wasupheld by the execution court and the: claim pet:i.t,i.on dis-missed.Additional de'en@ant 12 ks therefore filed thisappeal.

2. The hypotheca.tion bond or,. w:h{ch adcU.tions.l defen-dant12 has obtained the decree relied upon by hira is me. "\'I

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executed by his father, deennt 3, tr-, one Subramonia Iyer1 1105.In p::.:rtic1.l disch.~r[to of tki.t hypothecation bondone of the properties comprised ir x.VI waa sold by de-fn&rt 3 to Subramonia Iyer on 28,1,.1110.Ex. IX is thesale deed Pxec~,1.t8d by defen:ient 3 in favour of St[1].bramonia'Iv.,er.C)n th€smne d::ite two other documents_. viz.Exs.VIIa:nd· VTII,·were al en executed by Subramoni-? Iyer and addi-ti0a3 defen'gnt12.Eyx.VIl a propery standing inthe aof additional defenda.t12At:r.'.und.J.kayorn was soldt~,."ubrr:m0nie Iyer for the ba.11.nce due to him unr:e:r ?x.VIaftn.. the execl..-·tion cf~~x. IX, ar:d by:Y.,VIII ~ubr.emonia ·•12 ths right he hadfor the bal;mce amount d1J.e underi<:x.VII 8fter theexecu-ti02 0f·x. IX.Additional defend=t 12 claims that underthese to documents, he obtained tbs righ to the balanceamount subsisting und~r Fx.VI after t.hl':' execut:1.on of Ex. IXin exchange f'or his property rtMundakayom.AccoT'.ding tohia.. for the balance amount. thus due ta h.ir under • VIhe h,;s obtai11e,t the decree int":.~l.:cin.13 of 1122 of theKottayr i.strict Conrtand purchased the property nowattachoi by tdecree-holder in this suit and the attachedpopyhobe]omsohmeont,c:1tiou is hat the property at iiurlakyom really be-longr,d t.o defanda:rit 3, and not to ~dd:i.ttorial defc:ndrint 12,and by the cx8cution of bxs. iX and VII the·whole liabilityunder.:.~x. VI was discharged.The d.ecree-t1older cn!".tendsth8t after so discharging Ex.VI a sham assignment of itwas taken by defenc.ant 3 auci adaitiona.J. defendant12 in thename of e.dcdt ionul defennant12 wit-h a vi'ew to defaaud thecreditors o.t' defendant, 3 and shiela the l,9t,ter's propertyand tht the decree and execution proceedings in o.s. No.13

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of 1122 were then brought int.o exi.stence for carrytng outthis object.

himself iapes theae as only nineteen yass old whenIthe propery a ±undakayo a parc;used.He c1?ims thatthe sai.d property wasp-urchf!SOO·with his wife's ctowry andthe profits of a bu.sinesr:; which heWJS runnlng nt Aroor in 'SherthalJ...-1.i.l'aluk to which place his wife beJ.ongs.There-is,howeverno documeat or other reliable evidence toshowthat, ad<litiona} defen..\ant12 h:1d received a dowry ofTI.s.1000/-or thahewas run:ina business ever wen hwa:sza mereboy.It is also difficult to believe the stor tht addi-tio11al dei'e:nd:J-ct"t 12 sold a valuable property:?.t IJ:undak8yommerely for-taking in exchange a hypothecation bond executedhy h.is f:-,ther.Although thesgrment,?a.VIII, wastaken on 28.1.1110 the father's liab1?3t under th hypo-thecr,_tion bondW-d.8 not sought to be enforced nntiJ. the lat-ter had filed a petit1.on under t,he Debt P.eJ ief Act.:tn111& et'endnt 3 1led a petition under the D,:.bt·calief ·-~ctand obtained a stay of the decrees wi.li c[1]t w(~x-c then beingexecuted against him, i:ciuding the decre ia the presentC-9.se.It wcis whil:c! the stay order uas in force that addi-1tional defendant12 instituted o.s.No.13 of1122.Thede cree isolf was passed as€ result ofcompromise,-?.ndthe exGcuti on salean.d delivery soon followed without. anyopposit:i.on from the defendants in t,he suit.The :ManagingDirector of the decree~holder BRnk has deposed as P.W.1that. defendant 3 was heavily indebted et the time of r:xs. VII,.i.l'--VIIl end HttThe debt reli€f pE-tit:i.or: filGd by defendant .3in 1118 also shows th?,t he was hen.vily indebted not oblyat the time of xs.VII, VIII and TX but both bef'0re andafter that.In the circumstances, we hve absolutely no •

doubt of the fact thatF:x.VIII ie ashctm f':ssignment deed~ta.ken in the name of.::idditional defndA.nt 12 aft;anEx. IXwas disch1rged by the ·execution of' f"xs.VII and IX. and thatitwas taken with the object of defeating the creditors ofdefend,-int 3anri shielding his properties from them.·Wehold that the decree, court snle rd delivery relied uponby additional defer'ant 12 re also sham transactions andtht rot;withsto.dithe sid decree.court sale and deli-longed to fen3rt;3 t tho tine of th tt3ch%and was21able to be attacheda sold in execution of heg; 3T'The claim petition of additional defendant12 wasdisnissed on a former occ:;ision also by the lower court,a«of-and tho order p;:; ssed on that occasion 'by the lower.-(wasset aside in 4ppeaJ by this Court and the petition re-ma:nded for fresh enquiry 9.:td disposal.'fhe appellant'scounsel contended that as all the grounds now relied uponby thlower court fo dismissing thclaina petition wererelied upor! by the .lm·re:c court on the farmer occasion also_,the. lower court was wrong in dismissin the pet:i.ti on againon the same rounds.It is seen from the remand orderth'..1.t the remand wasOr'sr& on that occ1on in order toafford an epportunity to the parties to explain the facts'.\.ft er the remandboth additional defellci.ant12 and the,I-1.Jmaging Director ofthe decr3e-holder Bank wereExamined.Tte evidence of theclaimant has served only to expose the hollowness of hiscontentior th:twas with his own fun?s that the propertyatNun&aksyomwas purchased.LVBn from his evidsnce it is (,

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clear that Bx. VIII could not he beenpgenuine trans-action.According to hi'.'l,h:-: 2old thr,i1v:u.ndakriyom pro -perty in ezch."'1ngc f'or the'hypothr,c·clon ri.fht,:igai~st hison:;_CC•Turlt of rheuma.tj_sm.w1nd1:nz-· up hislnsiness was likoly to1':iavc sold:3r! yield- 23rd M~rch1955.

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