An application was filed to set aside the sale under Order XXI Rule 90 of the Code of Civil Procedure 1908.
The High Court found that the sale had taken place in favour of the appellant after the debt was incurred and pending the suit. Moreover, the transfer was to a close relative. Hence, the High Court held that the transfer was fraudulent, in terms of
Section 53 of the Transfer of Property Act. Consequently, the order passed by the Executing Court was affirmed. -Apex court passed a conditional order to deposite extra 5 lakhs for setting aside the High court order- Appeallant failed to deposit the same - So he is not entitled for the benefit of conditional order.
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2019
(Arising out of Special Leave Petition(C) No(s). 35367-35369
of 2016)
UNNIKRISHNAN APPELLANT(s)
VERSUS
PRABHAVATHI AND ORS. ETC. ETC. RESPONDENT(s)
O R D E R
Leave granted.
A suit for the recovery of money was filed by
Arumugham, the predecessor of the first respondent against
T.B.Babu, his son-in-law in the Court of the Principal
Sub-Judge, Thrissur, Kerala 1
. The suit was decreed on 31 July
2006 in the following terms:
�In the result, the suit is decreed with cost.
Plaintiff is entitled to realise Rs.5,15,726/-
with 12% interest for the principal amount of
Rs.4,47,420/- from the date of the suit till
the date of decree and thereafter at the rate
of 6% till the realisation of the amount with
cost from the defendant and his assets.�
The decree holder(s) filed execution proceedings. In the
1 OS No 359 of 1999
2
course of execution proceedings the immovable property which
forms the subject matter of the dispute was attached on 13
November 2006. A sale proclamation was issued. The property
was sold in execution on 27 January 2010. The property was
purchased on 10 April 2006 by a registered deed of sale by the
decree holder. An application was filed to set aside the sale
under Order XXI Rule 90 of the Code of Civil Procedure 1908.
Other claim petitions were filed under Order XXI Rules 58 and
97. The Executing Court dismissed all the execution
applications. F.A.O. No. 62 of 2012 and Ex. F.A. Nos. 19 of
2015 and 17 of 2016 were filed before the High Court. The High
Court found that the sale had taken place in favour of the
appellant after the debt was incurred and pending the suit.
Moreover, the transfer was to a close relative. Hence, the
High Court held that the transfer was fraudulent, in terms of
Section 53 of the Transfer of Property Act. Consequently, the
order passed by the Executing Court was affirmed.
On 9 December 2016, notice was issued in these
proceedings subject to the deposit of an amount of Rs.10 lakhs
and status quo was directed to be maintained. In pursuance of
the order of this Court, the appellant deposited an amount of
Rs.10 lakhs which has been invested by the Registry.
Respondent no. 1 has filed his reply stating inter alia
that as on 5 July 2017, an amount of Rs. 13,48,513 is due and
3
payable to him under the decree. During the course of hearing,
we have indicated to the learned counsel for the parties that
having regard to the facts and circumstances of this case it
would be appropriate, particularly, having regard to the fact
that the decree was simplicitor a money decree, if an amount
of Rs.15 lakhs is paid over to the decree holder(s) in full
and final settlement towards all claims and in satisfaction of
the decree.
Having due regard to the fact that the decree in the
present case was in a suit for the recovery of money
simplicitor, and the claim under the decree is computed at Rs.
13,48,513 as on 5 July 2017, which is not disputed, we are of
the view that the appellant should pay a total amount of Rs.15
lakhs. The appellant shall deposit an amount of Rs.5 lakhs
within a period of six weeks from today in the Registry of
this Court. On deposit, the decree holder(s) would be entitled
to withdraw the amount of Rs.10 lakhs which has already been
deposited along with the interest accrued thereon as well as
the additional amount of Rs.5 lakhs. Conditionally, on the
deposit of the additional amount of Rs.5 lakhs by the
appellant, the impugned order of the High Court shall stand
set aside and the Executing Court shall mark the decree as
satisfied. In that event, the sale dated 27 January 2010 in
favour of the decree holder(s) shall stand set aside.
4
However, if the appellant fails to deposit the additional
amount of Rs.5 lakhs he shall not be entitled to take the
benefit of the present order of this Court and the appeal
shall accordingly be dismissed.
There shall be an order in the above terms. The appeals
are accordingly disposed of. No order as to costs.
..........................J.
[DR. DHANANJAYA Y. CHANDRACHUD]
.........................J.
[M.R. SHAH]
NEW DELHI;
JANUARY 18, 2019.
5
ITEM NO.55 COURT NO.11 SECTION XI-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s).
35367-35369/2016
(Arising out of impugned final judgment and order dated
19-08-2016 in FAO No. 62/2012 19-08-2016 in EFA No. 19/2015
19-08-2016 in EFA No. 17/2016 passed by the High Court Of
Kerala At Ernakulam)
UNNIKRISHNAN Petitioner(s)
VERSUS
PRABHAVATHI AND ORS. ETC. ETC. Respondent(s)
Date : 18-01-2019 These petitions were called on for hearing
today.
CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MR. JUSTICE M.R. SHAH
For Petitioner(s) Mr. Thomas P. Joseph, Sr. Adv.
Mr. Sajith. P, AOR
For Respondent(s) Mr.K. Radhakrishnan, Sr. Adv.
Mr. K.V. Jagdishvaran, Adv.
Ms. G. Indira, AOR
Mr. Robin Khokhar, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeals are disposed of in terms of the signed order.
Pending application(s), if any, stands disposed of
accordingly.
(ASHWANI THAKUR) (SAROJ KUMARI GAUR)
COURT MASTER (SH) BRANCH OFFICER
(Signed order is placed on the file)
The High Court found that the sale had taken place in favour of the appellant after the debt was incurred and pending the suit. Moreover, the transfer was to a close relative. Hence, the High Court held that the transfer was fraudulent, in terms of
Section 53 of the Transfer of Property Act. Consequently, the order passed by the Executing Court was affirmed. -Apex court passed a conditional order to deposite extra 5 lakhs for setting aside the High court order- Appeallant failed to deposit the same - So he is not entitled for the benefit of conditional order.
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2019
(Arising out of Special Leave Petition(C) No(s). 35367-35369
of 2016)
UNNIKRISHNAN APPELLANT(s)
VERSUS
PRABHAVATHI AND ORS. ETC. ETC. RESPONDENT(s)
O R D E R
Leave granted.
A suit for the recovery of money was filed by
Arumugham, the predecessor of the first respondent against
T.B.Babu, his son-in-law in the Court of the Principal
Sub-Judge, Thrissur, Kerala 1
. The suit was decreed on 31 July
2006 in the following terms:
�In the result, the suit is decreed with cost.
Plaintiff is entitled to realise Rs.5,15,726/-
with 12% interest for the principal amount of
Rs.4,47,420/- from the date of the suit till
the date of decree and thereafter at the rate
of 6% till the realisation of the amount with
cost from the defendant and his assets.�
The decree holder(s) filed execution proceedings. In the
1 OS No 359 of 1999
2
course of execution proceedings the immovable property which
forms the subject matter of the dispute was attached on 13
November 2006. A sale proclamation was issued. The property
was sold in execution on 27 January 2010. The property was
purchased on 10 April 2006 by a registered deed of sale by the
decree holder. An application was filed to set aside the sale
under Order XXI Rule 90 of the Code of Civil Procedure 1908.
Other claim petitions were filed under Order XXI Rules 58 and
97. The Executing Court dismissed all the execution
applications. F.A.O. No. 62 of 2012 and Ex. F.A. Nos. 19 of
2015 and 17 of 2016 were filed before the High Court. The High
Court found that the sale had taken place in favour of the
appellant after the debt was incurred and pending the suit.
Moreover, the transfer was to a close relative. Hence, the
High Court held that the transfer was fraudulent, in terms of
Section 53 of the Transfer of Property Act. Consequently, the
order passed by the Executing Court was affirmed.
On 9 December 2016, notice was issued in these
proceedings subject to the deposit of an amount of Rs.10 lakhs
and status quo was directed to be maintained. In pursuance of
the order of this Court, the appellant deposited an amount of
Rs.10 lakhs which has been invested by the Registry.
Respondent no. 1 has filed his reply stating inter alia
that as on 5 July 2017, an amount of Rs. 13,48,513 is due and
3
payable to him under the decree. During the course of hearing,
we have indicated to the learned counsel for the parties that
having regard to the facts and circumstances of this case it
would be appropriate, particularly, having regard to the fact
that the decree was simplicitor a money decree, if an amount
of Rs.15 lakhs is paid over to the decree holder(s) in full
and final settlement towards all claims and in satisfaction of
the decree.
Having due regard to the fact that the decree in the
present case was in a suit for the recovery of money
simplicitor, and the claim under the decree is computed at Rs.
13,48,513 as on 5 July 2017, which is not disputed, we are of
the view that the appellant should pay a total amount of Rs.15
lakhs. The appellant shall deposit an amount of Rs.5 lakhs
within a period of six weeks from today in the Registry of
this Court. On deposit, the decree holder(s) would be entitled
to withdraw the amount of Rs.10 lakhs which has already been
deposited along with the interest accrued thereon as well as
the additional amount of Rs.5 lakhs. Conditionally, on the
deposit of the additional amount of Rs.5 lakhs by the
appellant, the impugned order of the High Court shall stand
set aside and the Executing Court shall mark the decree as
satisfied. In that event, the sale dated 27 January 2010 in
favour of the decree holder(s) shall stand set aside.
4
However, if the appellant fails to deposit the additional
amount of Rs.5 lakhs he shall not be entitled to take the
benefit of the present order of this Court and the appeal
shall accordingly be dismissed.
There shall be an order in the above terms. The appeals
are accordingly disposed of. No order as to costs.
..........................J.
[DR. DHANANJAYA Y. CHANDRACHUD]
.........................J.
[M.R. SHAH]
NEW DELHI;
JANUARY 18, 2019.
5
ITEM NO.55 COURT NO.11 SECTION XI-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s).
35367-35369/2016
(Arising out of impugned final judgment and order dated
19-08-2016 in FAO No. 62/2012 19-08-2016 in EFA No. 19/2015
19-08-2016 in EFA No. 17/2016 passed by the High Court Of
Kerala At Ernakulam)
UNNIKRISHNAN Petitioner(s)
VERSUS
PRABHAVATHI AND ORS. ETC. ETC. Respondent(s)
Date : 18-01-2019 These petitions were called on for hearing
today.
CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MR. JUSTICE M.R. SHAH
For Petitioner(s) Mr. Thomas P. Joseph, Sr. Adv.
Mr. Sajith. P, AOR
For Respondent(s) Mr.K. Radhakrishnan, Sr. Adv.
Mr. K.V. Jagdishvaran, Adv.
Ms. G. Indira, AOR
Mr. Robin Khokhar, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeals are disposed of in terms of the signed order.
Pending application(s), if any, stands disposed of
accordingly.
(ASHWANI THAKUR) (SAROJ KUMARI GAUR)
COURT MASTER (SH) BRANCH OFFICER
(Signed order is placed on the file)
