Karnataka High Court
Priya Roche vs G R Shet on 13 January, 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.554 OF 2019
Between:
Priya Roche
D/o Ronald Roche
Aged about 29 years
R/at Shanthi Vihar
Near Bhagini Samaj
Jeppu Market Road
Mangaluru-575 002.
...Appellant
(by Shri Vishwajith Rai M., Advocate)
And:
1. G R Shet
S/o late K.R.K. Shet
Aged about 75 years
C/o Vasanth Mahal
K S Rao Road
Manaluru-575 001.
2. M/s. Corporation Tiles Work
Mangaluru
Represented by its Partner
Mr. Ronald Roche
S/o A.J.P. Roche
Age: Major
R/at Shanthi Vihar
2
Near Bhagini Samaj
Jeppu Market Road
Mangaluru-575 002.
3. Mr. Ronald Roche
S/o A.J.P. Roche
Age: Major
R/at Shanthi Vihar
Near Bhagini Samaj
Jeppu Market Road
Mangaluru-575 002.
4. Mrs. Gracy Marla Roche
W/o Mr. A.J.P. Roche
Age: Major
R/at Shanthi Vihar
Near Bhagini Samaj
Jeppu Market Road
Mangaluru-575 002.
5. Mr. K Prakash Basri
S/o late K N Basari
Age: Major
R/at Nehru Avenue Cross Road
Lalbagh
Mangaluru-575 001.
...Respondents
(by Shri M Sudhakara Pai, Advocate for R-1;
Notice to R-2 to R-4 is dispensed with,
V/o dated 15.10.2019;
R-5 served)
This Regular Second Appeal is filed under Section 100 of
the Code of Civil Procedure against the judgment and decree
dated 21st December, 2018 passed in RA.No.25 of 2018, on the
file of the Principal District Judge, D.K. Mangaluru allowing the
appeal and setting aside the order dated 06.06.2018 passed in
Misc.No. 25 of 2015 on the file of the II Additional Senior Civil
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Judge and CJM., Mangaluru D.K., allowing the petition filed
under Order XXI Rule LVIII of CPC.,
This Appeal coming on for further hearing, this day, the
court delivered the following:
JUDGMENT
This Regular Second Appeal is filed by the petitioner in Miscellaneous Petition No.25 of 2015 on the file of the II Additional Senior Civil Judge and CJM at Mangalore, Dakshina Kannada, whereby the said Miscellaneous Petition came to be allowed by the Trial Court vide its order dated 06th June, 2018 and being aggrieved by the same, the respondent No.1 therein has filed Regular Appeal No.25 of 2018 on the file of Principal Sessions Judge, Mangalore Dakshina Kannada and the First Appellate Court by its Judgment and Decree dated 21st December, 2018, allowed the appeal.
2. For the sake of convenience, the parties in this appeal are referred to with their status before the trial Court.
3. It is the case of the appellant/petitioner that the respondent No.1 herein has filed Original Suit No.359 of 2004 on the file of the Second Additional Civil Judge, Senior Division, 4 Mangalore for recovery of money against the respondent No.3 herein who is the father of the appellant. The said suit was filed by the respondent No.1 herein against the partnership firm M/s. Corporation Tiles Work-Respondent No.2 (for short, hereinafter referred to as 'Firm'). The respondents No.3 to 5 are the partners to the respondent No.2-Firm. The said suit came to be decreed by the trial Court on 17th December, 2008. The said judgment and decree passed by the trial Court has attained finality. Thereafter, the respondent No.1 has filed Execution Petition No.44 of 2009 on the file of Civil Judge (Sr. Dn.), Mangalore. The said Execution Petition is pending consideration before the trial Court. It is the case of the petitioner that the respondent No.3 has executed settlement deed dated 07th February, 2001 in respect of the subject matter of the suit in favour of the petitioner and therefore, it is the case of the petitioner that as the subject matter of the property has already been settled in favour of the petitioner (appellant herein) and as such, the respondent No.1 herein has no right or claim over the subject matter of the suit and therefore, the petitioner herein has filed Miscellaneous No.25 of 2015 on the file of the II 5 Additional Senior Civil Judge and CJM Under Order XXI Rule 58 of the Code of Civil Procedure for raising the attachment order passed against the schedule property. The said Miscellaneous was resisted by the respondent No.1 by filing detailed objections contending that the respondent No.3 is the father of the petitioner and he had availed loan of Rs.4,10,000/- from the respondent No.1, inter alia, executed on-demand promissory note on 12th March, 1999, and in order to defeat the rights of the creditor/respondent No.1 herein, the third respondent has executed settlement deed dated 07th February, 2001 in favour of his children including the petitioner (appellant herein) who was minor at the time of execution of the settlement deed. The trial Court, after considering the material on record, by its order dated 06th June, 2018 allowed the Miscellaneous filed by the petitioner under Order XXI Rule 58 of the Code of Civil Procedure and accordingly, the order of attachment passed with respect to the schedule property was set aside. Being aggrieved by the order date 06th June, 2018 passed by the trial Court, the respondent No.1-creditor has filed Regular Appeal No.25 of 2018 on the file Principal Sessions Judge, Dakshina Kannada 6 Mangalore. On service of summons, petitioner/appellant herein has represented before the First Appellate Court and contested the appeal. The First Appellate Court, after considering the material on record and on re-appreciation of evidence on record, by its judgment and decree dated 21st December, 2018 allowed the appeal preferred by the respondent No.1 herein, and consequently, order dated 06th June, 2018 passed in Miscellaneous No.25 of 2015 was set aside.
4. Being aggrieved by the judgment and decree dated 21st December, 2018 passed by the First Appellate Court in Regular Appeal No.25 of 2018, the appellant/petitioner has preferred the instant second appeal. This Court, by order dated 19th August, 2019 has ordered notice and the respondent No.1-creditor has entered appearance. Notice, insofar as respondent No.5 is served and unrepresented; and Notice to respondents No.2 to 4 is dispensed with.
5. I have heard Shri Vishwajith Rai, learned counsel for the appearing for the appellant and Shri Sudhakar Pai, learned counsel appearing for the respondents.
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6. Shri Vishwajith Rai, learned counsel appearing for the appellant contended that the settlement deed was executed by the respondent No.3 in favour of the appellant herein on 07th February, 2001. He further submitted that the respondent No.1 has filed suit in OS No.359 of 2004 against the Respondent No.3 in the year 2004 and the said suit came to be decreed on 17th February, 2008 and therefore, as the settlement deed was executed prior to the filing of the suit in OS No.359 of 2004, the judgment and decree passed by the trial Court in Original Suit No.359 of 2004 is not binding on the appellant herein. He further contended that pursuant to decree of OS No.359 of 2004, the respondent No.1 herein has filed Execution Petition No.44 of 2009 before the trial Court and the attachment order has been made by the trial Court in the Execution proceedings. However, the said attachment order passed by the Executing Court as against the partnership Firm, and since the appellant herein is not a partner to the said partnership firm, the Executing Court has rightly allowed the Miscellaneous No.25 of 2015 filed by the appellant herein by order dated 06th June, 2008 and the said 8 finding is incorrect and therefore, he submits that the same is liable to set aside.
7. Shri Vishwajith Rai, learned counsel for the appellant draws attention of the Court to Order XXI Rule 58 of the Code of Civil Procedure, particularly with regard to proviso to Rule 58 clause (1) and submitted that in view of the proviso to Rule 58(1) of Order XXI of the Code of Civil Procedure, no claim should have been made by the respondent No.1-creditor against the settlee as per settlement deed dated 07th February. 2001 and if at all, any claim has to be made by the respondent No.1, it is only against the personal property belonging to respondent No.3 and not in respect of the subject matter of the property mentioned in the settlement deed. Since the subject matter of the property is settled prior to the decree passed by the trial Court, the learned counsel for the appellant pressed into service the proviso to Rule 58(1) of Order XXI of the Code of Civil Procedure.
8. With reference to finding recorded by the Execution Court as per paragraph 13 of the judgment in Miscellaneous 9 No.25 of 2015, the learned counsel submitted that, it is beyond the scope of the appellate Court to give a finding regarding the fact that the appellant herein has committed the fraud, which has not been urged before the Executing Court and therefore, the finding of fact made by the First Appellate Court is contrary to the pleadings before the Executing Court in Miscellaneous Petition No.25 of 2015. He, further, submitted that pursuant to the Execution of the settlement deed dated 07th February, 2001, the settlees have mutated their names in the revenue records and as such, as on the date of the filing of Miscellaneous No.25 of 2015, the name of the appellant was entered in RTC records and therefore, the finding recorded by the First Appellate Court at paragraph 12 of the judgment is not correct and requires to be interfered by this Court by exercising power under Section 100 of the Code of Civil Procedure. In support of his submissions, the learned Counsel placed reliance on the judgment of this Court in the case of D.L. SRIDHAR v. C.R. CHANDRAMOHAN AND ANOTHER reported in ILR 2008 KAR. 591; and in the case of LINGA BHATTA ALIAS THAMMAIAH AND 10 OTHERS v. M/S. SARAVANA ENTERPRISES AND ANOTHER reported in AIR 2003 KAR 128.
9. Shri Vishwajith Rai, further contended that there is no impediment for respondent No.3 to convey the schedule property by way of settlement deed in favour of the appellant herein though she was minor at the time of execution of settlement deed. In this connection, he places reliance on the judgment of Hon'ble Supreme Court in the case of K. BALAKRISHNAN v. K KAMALAM AND OTHERS reported in (2004)1 SCC 581.
10. Per contra, Shri Sudhakar Pai, learned counsel appearing for the respondent submitted that it is not disputed by the parties before the trial Court with regard to execution of the on-demand promissory note by the third respondent on behalf of the partnership Firm in favour of the respondent No.1. The consideration amount, as stated in the promissory note, was in a sum of Rs.4,10,000/- pursuant to which respondent No.3 has issued a cheque in favour of the respondent No.1 which came to be dishonoured and pursuant to the same, first respondent filed 11 a private complaint under Section 138 of the Negotiable Instruments Act against the respondent No.3 herein which resulted in registration of CC No.229 of 2001 on the file of the Criminal Court which came to be allowed on 08th April, 2004 convicting the respondent No.3 herein and being aggrieved by the same, the respondent No.3 herein has filed Criminal Appeal No.132 of 2004 on the file of the II Additional Sessions Judge, Mangalore which came to be allowed by its judgment dated 21st December, 2004 and being aggrieved by the same, the Respondent No.1-Complainant in CC No.229 of 2001 preferred Criminal Appeal No. 208 of 2005 on the file of this Court and this Court by order dated 31st March, 2009, set aside the judgment and order of the First Appellate Court and confirmed the order passed in CC No.229 of 2001 and thereby, conviction of the respondent No.3 was confirmed. He further submitted that the said criminal case ended up in conviction of the Respondent No.3. Having drawn the attention of the court with regard to the finding recorded by the First Appellate Court, Shri Sudhakar Pai, learned counsel appearing for the respondent, submitted that the respondent No.3 in order to defraud the creditors, viz. the 12 respondent No.1 herein, has executed settlement deed dated 07th February, 2001 in favour of his children, particularly Appellant herein, who was minor at the time of execution of settlement deed. Emphasising on these aspects, he submitted that the appellant herein was minor at the time of execution of the settlement deed and she was not represented by her next friend at the time of execution and therefore, the settlement deed itself is void in the eye of law. Therefore, he submitted that the finding recorded by the First Appellate Court interfering with the finding of fact narrated by Executing court in Miscellaneous No.25 of 2015 is just and proper.
11. Shri Sudhakar Pai, drews the attention of court with regard to cross-examination of PW1. He submitted that the perusal of the cross-examination of PW1 would clearly indicate that even after the settlement deed in 2001, Respondent No.3 and his children were staying under one roof and the said aspect of the matter was admitted by PW1 during her cross- examination, which would clearly indicate the fact of intention to execute settlement deed is only to ensure that the properties are 13 kept away from creditors. He further submitted that PW1 further admitted during cross-examination before the PW1 has admitted during the cross-examination before the Execution Court that the Tile Factory, which is owned by the Firm is already mortgaged with the Bank, would clearly indicate the fact that no other property has been left out by the partners to the respondent No.2-Firm and therefore, the finding recorded by the First Appellate Court on an admission made by PW1 during her cross- examination would be accepted and therefore, the First Appellate Court, on re-appreciation of evidence on record, had rightly set aside the order dated 06th June, 2018 passed in Miscellaneous No.25 of 2015 by the Execution Court is just and proper and therefore his final submission is that the appellant herein has not made out case for interference by this Court by exercising the jurisdiction under Section 100 of the Code of Civil Procedure and therefore, sought for dismissal of the appeal. Shri Sudhakar Pai, placed reliance on the judgment of the Hon'ble Supreme Court in the case of C. ABDUL SHUKOOR SAHEB v. ARJI PAPA RAO AND OTHERS reported in AIR 1963 SC 1150; and in the 14 case of ABDALLAKHAN DARYAKHAN v. PURSHOTTA DAMODAR reported in AIR (35) 1948 BOMBAY.
12. I have carefully examined the arguments advanced by the learned counsel appearing for the parties and perused the original records. The controversy between the parties are that the respondent No.1 herein has filed O.S No.359/2004 seeking recovery of money against respondent No.2. Admittedly, respondent No.2 is a partnership firm and respondents 3 to 5 are partners to respondent No.2-Firm.
13. The perusal of the record would indicate that partnership firm represented by its partners 3 to 5 have availed loan of Rs.4,10,000/- from the respondent No.1 and in this regard respondent No.3 had executed the promissory note dated 12.03.1999 in favour of respondent No.1. Since the said loan availed by respondent No.3 was not repaid to respondent No.1 herein and as such, respondent No.1 has filed O.S No.359/2004 against the Firm and its partners and the said suit came to be decreed on 17.12.2008. The perusal of the record further indicate that respondent No.3 herein has executed Settlement 15 Deed dated 07.02.2001 as per Ex.P2 in favour of his children and the appellant herein is also one of the beneficiaries of the Deed of Settlement.
14. The perusal of the record, particularly the recitals to the settlement deed as well as the arguments advanced by learned counsel appearing for respondent No.1 was that the said settlement deed was executed by appellant No.3 in favour of his children including the appellant herein is to keep out of the schedule property from execution proceedings initiated by respondent No.1. In this regard, I carefully examined the deed of settlement (Ex.P2). The reason for execution of Settlement Deed by respondent No.3 in favour of respondent No.1 and other children as culled out in the deed of settlement is as follows:
a. "The SETTLOR executing this Settlement deed in favour of SETTLEES who is none other than children of the SETTLOR with a view to making a provision for the future of the SETTLES considering their dependency on him.
(emphasis supplied by me) 16
15. The perusal of aforestated recital in the deed of settlement would indicate that respondent No.1 has executed the settlement deed to make provision for the future of his children (settlees) considering their dependency on him. At this juncture, it is to be noted that respondent No.3 has availed loan from the bank for the purpose of partnership firm and in this regard he had mortgaged certain properties in favour of the said schedule banks. Therefore, respondent No.3 had executed pronote dated 12.03.1999 in favour of respondent No.1 herein. Respondent No.3 was well aware about his financial condition and as such, in order to protect the interest of the children from the loan, that is availed from the scheduled bank and respondent No.1 herein, appears to have executed the Settlement deed on 07.02.2001. It is not the case of the appellant before the trial Court that she is residing away separate from her parents. Both the appellant as well as respondents No.3 and 4 are residing in the very same roof would clearly fortify my conclusion that the respondent No.3 with an intention to defraud the creditors, executed the settlement deed in favour of his children. Further, appellant herein was minor at the time of execution of the 17 settlement deed dated 07.02.2001(Ex.P2), which would clearly supports the contention raised by the learned counsel appearing for respondent that the intention of respondents No.3 and 4 is to keep away the creditors of respondent No.2 and the said conduct on the part of respondent No.3 inter alia circumstances made him to execute settlement deed in the year 2001, during which time appellant was minor, who has not been represented by any next friend as such and therefore, intention behind the execution of settlement deed is to settle the property in faovur of three daughters despite there is no compelling circumstances for execution of settlement deed Ex.P2. In that view of the matter, the finding recorded by First Appellate Court is to be accepted and as such, the finding recorded by the trial Court is liable to be set aside. It is pertinent to refer the judgment relied upon by the learned counsel appearing for the respondent in the case of ABDALLAKHAN DARYAKHAN (supra) wherein at paragraph 4 of the judgment, the Division Bench of Bombay High Court observed thus:
"...under such circumstances it would not be permissible for defendant 1 to rely upon a part of the 18 amounts thus received by him from his son as a valid consideration for the transfer made by him. The Courts below have held that the reference to the consideration made in the document was merely a device to justify the execution of the deed and the object of the said document was clearly to defeat or delay the creditors of defendant 1. In view of this finding it is possible for us to accept Mr Somjee's argument that the transfer would be valid under Section 25(2), Contract Act."
16. Perusal of the aforementioned judgment would clearly indicate that the debtor in the aforesaid case had conveyed the property in question in favour of one of his sons (defendant No.2) on 19th October, 1929 with an intention to defeat or delay the creditors of defendant No.1 therein. In the aforementioned case, the Division Bench of Bombay High Court, having considered the evidence on record has held that the conduct of defendant No.1 to convey the property in favour of his son (defendant No.2) is to defeat the legitimate rights of the creditors. The observation made by the Division Bench of the Bombay Court squarely applies to facts of the case.
17. I have carefully gone through the documents as well as the submission made by learned counsel appearing for the 19 parties which clearly establish the fact that respondent No.3 had issued cheque in favour of respondent No,1, which came to be dishonoured for want of funds resulting in filing of private complaint against respondent No.3 and subsequently which came to be registered as CC No.229/2001 on the file of the Criminal Court, came to be allowed by order dated 08th April 2004 convicting the respondent No.3 and being aggrieved by the order of conviction, the respondent No.3 filed Criminal appeal No.132 of 2004 on the file of II Additional Sessions Judge, Mangalore which came to allowed, against which the complainant in CC No.229 of 2001 preferred Criminal Appeal in No.208 of 2005 before this Court, which came to be allowed by order dated 31st March 2009 setting aside the judgment and order of the First Appellate Court confirming the conviction order dated 08th April, 2004 passed in CC No.229 of 2001.
18. The aforestated undisputed fact would clearly clinch the fact that the respondent No.3 deliberately executed settlement deed in favour of his children to defeat the claim made by 1st respondent in pursuant of the execution of the 20 promissory note dated 12.03.1999. A judicial note be made at this juncture that, the 3rd and 4th respondents and their children, including appellant herein, are residing in the same house and the appellant as well as other children of 3rd and 4th respondents aware about financial condition/status of the 2nd respondent- partnership ship inter-alia the appellant and remaining two children of 3rd and 4th respondents had the knowledge of the bank loan availed by 3rd respondent in respect of partnership firm and the said circumstances would clearly indicate the fact that respondent No.3 deliberately, in order to defeat the claim to be made by respondent No.1 herein, had executed the settlement deed as this is only property available to the respondent No.3 to satisfy the decree lawfully obtained by the creditor. Though the learned counsel for the respondent submitted that execution of settlement deed in favour of the minor attracts Section 11 of the Contract Act, 1872, however in view of the law declared by the Hon'ble Supreme Court in the case K. BALAKRISHNAN (supra), the contention raised by the respondent cannot be accepted.
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19. Yet another ground for finding fault with the reasons assigned by the trial Court in Mis.No.25/2015 is that respondents No.2 to 4 in R.A No.25/2018 were served with service of notice . However, respondents No.2 to 4 have not contested the case. Respondents No.3 to 4 herein have not stepped into witness box in Miscellaneous No.25/2015 and therefore, in view of the law declared in the case of MAN KAUR (DEAD) BY LRS vs. HARTAR SINGH SANGHA reported in (2010) 10 SCC 512, an adverse inference had to be drawn that, respondent No.3 had deliberately executed the settlement deed in favour of his children to protect their interest from the creditor. The Hon'ble Supreme Court in the case of MAN KAUR (supra), at paragraph 14 of the judgment, has observed as follows:
"Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct."22
20. Admittedly, in the instant case, respondents No.3 and 4 remained absent and have not contested the appeal. Therefore, the finding recorded by the First Appellate Court to be accepted.
21. I have carefully examined the cross-examination of PW1. During her cross-examination on 15.07.2017 deposed as follows:
"F CfðAiÀÄ£ÀÄß ºÁPÀĪÁUÀ £Á£ÀÄ £À£Àß vÀAzÉ vÁ¬ÄAiÉÆA¢UÉ ªÁ¸ÀªÁVzÉÝ. £À£Àß vÀAzÉ ªÀiÁrgÀĪÀ ªÀåªÀ¸ÁÜ ¥ÀvÀæzÀ §UÉÎ £À£ÀUÉ 2001 gÀ°è UÉÆvÁÛVgÀÄvÀÛzÉ. D ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ £À£Àß vÀAzÉAiÀÄ ¥ÉÆõÀuÉAiÀÄ°èzÉÝ JAzÀgÉ ¸Àj. ªÀåªÀ¸ÁÜ ¥ÀvÀæªÀ£ÀÄß ªÀiÁqÀĪÁUÀ £À£Àß vÀAzÉUÉ F CfðAiÀÄ°è ºÉüÀ¯ÁzÀ D¹ÛUÀ¼À£ÀÄß ©lÄÖ ¨ÉÃgÉ D¹ÛUÀ¼ÀÄ EzÀݪÀÅ. £À£Àß vÀAzÉ FUÀ®Æ ¨ÉÆüÁgï£À°è mÉÊ¯ï ¥sÁåPÀÖj ºÉÆA¢gÀÄvÁÛgÉ. £À£Àß vÀAzÉ FUÀ®Æ zÁªÁ D¹ÛAiÀÄ°èAiÉÄà ªÁ¸À ªÀiÁqÀÄvÁÛgÉ. ªÀåªÀ¸ÁÜ ¥ÀvÀæ ªÀiÁrPÉÆlÖ £ÀAvÀgÀªÀÇ £À£ÀߣÀÄß ªÀÄvÀÄÛ £À£Àß CPÀÌA¢gÀ£ÀÄß £À£Àß vÀAzÉAiÉÄà £ÉÆÃrPÉƼÀÄîwÛzÁÝgÉ."
22. The perusal of the aforesaid evidence of PW1 would assist the arguments advanced by the learned counsel appearing for respondent No.1 to the fact that respondent No.3 and Appellant herein in collusion as well as to defeat the claim of the creditor, namely, respondent No.1, have entered into a 23 settlement deed, so also, filed Miscellaneous No.25/2015 before the Executing Court.
23. I have carefully examined the order sheet maintained by executing Court in Ex.P.No.44/2009 particularly order dated 25.03.2015 reads as under:
"Jdr and counsel absent. No representation which shows that he is not interested in the matter. Hence, issue Attachment warranting of immovable property against Jdr as prayed. if P.F paid, returnable by 16/6 Sd/- 25/3"
24. The perusal of the above mentioned order clearly envisages the fact that the executing Court has ordered for issue of attachment in respect of immovable properties of respondents No.3 and 4 and thereby appellant herein, who is a petitioner in Miscellaneous No.25 of 2015 has filed petition under Order XXI Rule 58 of CPC to defeat the rightful claim made by respondent No.1.
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25. Though the learned counsel appearing for the appellant contended that on the date of settlement of execution no attachment order or any kind of such order was issued against respondent No.3, however, the perusal of the record would clearly indicate that, as narrated above, respondents No.3 and 4 and their children including appellant herein were well aware about the financial condition of the respondent No.2-Firm, as respondent No.3 had mortgaged the property of the Firm in favour of the bank to avail loan and therefore, the only property left out by respondent No.3 was the suit schedule property in Ex.P No.44/2009. Therefore, the finding recorded by the First Appellate Court is just and proper and the First Appellate Court after re-appreciating the entire evidence on record has rightly come to the conclusion that the trial Court ought to have appreciated the facts, more so, when PW1 has specifically admitted that the property, where the tile factory is situated, is also already mortgaged to the Bank.
26. Nextly, though the learned counsel for the appellant places reliance on the judgment passed by this Court in the case 25 of SRI.D.L.SRIDHAR vs. SRI.C.R.CHANDRAMOHAN AND ANOTHER reported in ILR 2008 KAR 591 and in the case of LINGA BHATTA (supra), I have carefully examined the facts of the case in the above mentioned judgments and I do not find any compelling circumstance to accept the law declared by this Court in the aforementioned judgment, as the facts of aforementioned cases are different from the case on hand.
27. It is pertinent to mention herein that Hon'ble Supreme Court in the case of C. ABDUL SHUKOOR SAHEB (supra), whereunder at paragraph 26 of the judgment, the Hon'ble Supreme Court has observed as under:
"26. It would thus be seen that the entire argument as regards the impact of the nature of the enquiry under O. XXI R.58, on the defences which would be open in a suit under O.XXI R.63, depends on two factors: (1) the summary order being passed on the merits and not because the making of the claim was designedly or unnecessarily delayed and (2) the summary order being right on the merits and strictly in conformity to the provisions of the Code."26
28. Perusal of the aforementioned judgment would clearly indicate that even if the transfer does not defeat the claim of the creditor, however, same would be accepted as delay on the part of the debtor against the rightful creditor and as such, conduct of the appellant and respondent No.3 amounts to fraudulent act.
29. Though the learned counsel appearing for the appellant argued that Respondent No.1 ought to have made an application before the trial Court under Order XXXIX Rule 5 of CPC and so also argued that the proviso to order XXI Rule 58 of CPC with regard to the claim made thereunder, however, I do not find any acceptable arguments on the part of the learned counsel appearing for the appellant to interefere with the well- reasoned judgment passed by the First Appellate Court.
30. In this regard the observation made by the co- ordinate Bench of Madhya Pradesh High Court in the case of RAMESH S/O SUKHALAL KULMI v. GOPALJI KULMI AND OTHERS reported in AIR 1993 MP 140, wherein the father and son were living jointly and the son has filed a objection under Order XXI Rule 58 of CPC with regard to execution of money decree passed 27 against his father, the Madhya Pradesh High Court has rejected the application filed under Order XXI Rule 58 of CPC on the ground that father and son living jointly as well as absence of pleadings and proof that was incorporated by father for immoral purpose and accordingly, attachment and sale of property was held to be valid.
31. Having considered the finding recorded by the First Appellate Court, I am of the considered opinion that the First Appellate Court has re-appreciated the facts on record in the right perspective and has rightly interfered with the judgment passed by Executing Court to save the interest of the creditor, particularly, 1st respondent herein. By taking into consideration, the entire oral and documentary evidence on record, the appeal deserves to be dismissed. Since the appellant herein has not made out a case for formulation of any substantial question of law required to be looked into in the facts and circumstances of the case as provided under Section 100 of CPC, appeal is dismissed at the stage of Admission itself. Consequently, judgment and decree dated 21.12.2018 passed in R.A 28 No.25/2018 by Principal Sessions Judge, Dakshina Kannada, Mangaluru is confirmed.
In view of the dismissal of the main appeal, pending applications, if any, also stand dismissed.
Sd/-
JUDGE lnn/UN