Priya Roche vs G R Shet
2021 Latest Caselaw 744 Kant

       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
                                   3




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,

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

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

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.

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

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

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

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

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

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

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

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

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)

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

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

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

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

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.

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."

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

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.

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

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."

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

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

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