Execution pitition to attach the property in bond case

Dear Mr Pradeep, 

There is one way to recovery the money from that lady. You may not like the idea because it involves another legal battle. But if the amount of your decree is significant, it will be worth a try. 

1. If you have filed execution petition in your case, withdraw it. If not filed, then don't file. 

2. File a declaratory suit under Specific Relief Act, 1963 to declare the transfer of property by lady to her son as null and void for being in contravention of Section 53 of Transfer of Property 1882. Section 53 takes about fraudulent transfer. Make lady defendant 1 and her son defendant 2 to the declaratory suit. 

3. When you file the suit then along with the suit also file Application under Order 39 for injunction, restraining the defendants from causing any further transfer of the property. 

4. While your declaratory suit is going on and if you find any property to lady's name file execution and proceed. 

5.  Meanwhile if the declaratory suit is decreed in your favour then file execution in earlier case immediately and get the property attached and then sold. 

Obviously there are remedies of appeal available to her. But then if it has to be fight, let it be a good one. 

All the Best. 

Regards

Shubham Bhardwaj (Advocate)

Great thanks Subham Sir,

So far we and they both struggled in the courts for 7 years ,but still no benifit for any one,

We already paid money to lawyer for EP pitition to attach her son's property ,

Also paid money to lawyer in the Appeal counter in High court ,

Now my father is not interested to file any other case as suite ,

In this Execution pitition court can't give attachment on that property right ?

Her son also took loan on that property from bank and others too with mortgage process,

Let me know what can I do with in this EP pitition on that property attachment without filing a fresh suit or case to make that property registration as void ,

As that property registered on her son's name 4 years back and her son also paid house tax for four years and he had taken mortgage loans ?

Kindly advise ,sincere request,

Pradeep G

The lady had got the property through Will from her father-in-law. It is her absolute property.

There is nothing called gifted sale deed. It is either a sale deed or gift deed, not the both.

If a gift deed or a sale deed without payment of full consideration, the facts poste suggest the conveyance to be a fraudulent transfer.

53. Fraudulent transfer.—

(1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration. Nothing in this sub-section shall affect any law for the time being in force relating to insolvency. A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of, or for the benefit of, all the creditors.

(2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.

Hence, you, as the creditor, has the option to approach a civil court to get the transfer declared void.

Independent of the provisions of the above law, the  transaction, if a sham, is also voidable. A sham  transaction is one in which property is transfer only on papers and not actually by the beneficial owner to the transferee. In this transaction the title and possession of property does not transfer to the transferee 

@Pradeep, you are lucky to get a decree within 7 years, even after 10 years there are persons who are waiting for winding up trial. I have been from the beginning stating that it is a fraud and the transfer is nominal, and the deed is a sham document.   Now as rightly suggested by Shri Subham Bharadwaj and P. Venu filing a declaration suit is the right option.  Get some POA or assignment-like deed in your name and follow the declaration suit.  Several details to establish fraud raised by me was ignored by you.  Had you provided those details sought, there should have been more grounds for establishing a fraudulent deed.

How many years this new suite case will take in sessions court and hc ,if we file a new case ?

No one can tell as it may take a minimum of 5 years.  The advantage of filing a suit in the name of your father is he can get the court filed through fast-track courts if he is a senior citizen.  You can also file a Pre Litigation Conciliation before Legal Services Authority for a compromise and then approach the regular court.

Dear Mr Pradeep, 

As per my opinion, as far as the execution petition is concerned, the executing court cannot proceed against the property which has been transferred before decree in the name of lady's son. 

With regard to suit for declaration, it will all depend on circumstances because the time of a court case depends on multiple factors which cannot be predicted. But generally declaration suits takes 2-3 years in trial court. But there is one important fact that you may consider. When you file the suit you must file Application under Order 39 for injunction.  This means that the lady's son will not be able to dispose of the property in any manner. 

Regards

Great thanks for better suggestions as per the  IPC of CIVIL ,before this injunction order if her son sell his property ,is that an offense?,then what we have to do ?

Regards,

Pradeep Gorpadu

The suggestions and the opinions rendered by learned advocate Shubam Bardwaj are highly appreciable.

Not to discourage you, the suggestion to file a suit invoking ther provisions of section 53 of Transfer of property act at this juncture may not be entertained by the court at this stage especially when the money recovery suit has been decreed and an appeal in this regard is pending before high court.

It may be considered as filling up the lacuna.

This step should have been taken up at the time when this property was transferred in the year 2017 or before the decree was passed.

In my opinion, the execution petition as well as the decree passed by the trial court is just a piece of paper without any use.

You may wasting more money, time and energy without any fruitful result  foresee by any such attempts, hence you may think of the further losses with the newly proposed litigation and take a wise decision at right time.

Great thanks Sir ,many thanks for your time

You are welcome for the appreciations.

The querist has not been fully honest in his posting, not only in respect to facts but also, his identity. Virtually he has cornered this platform by posing himself to be from the opposite side and the facts in their point of view.

Surprisingly, the replies on the mode of his conduct in representing as an opposition party and misleading the forum, etc. were not appearing even after posting.  This is the first time, I have come across one playing smart tricks with impersonation and wasting 3 pages of the forum, to know the possible tactics of his mighty opponent.  The fact the queriest is ignoring is that his opponent is not only mighty and powerful but even smarter and knows how to play games..

What is happening?  Once again, updates are not being added to the thread.

Thanks for the reply,nothing is there to hide ,that retired  SP who has put bond case on my mom (she studied only 3rd standard) ,with that SP gang of three manual witness( these people gave the fake statement infront of the judge and tols that 'yes this lady has taken 7.5 lkahs from this SP) court has passed the order in the favour of that SP(there was no checks or mortgage or neft transactions) ,that my mom has to pay 7.5 lakhs with interest to that SP ,but the fact was my grand father has taken 1 lakh from that SP and then my grand fa passed away,then instead of 1 lakh that SP created fake bond of 7.5 lakhs with fake manual witness to get the decree or property attachment in 2014 ,but there was no injunction order against that property by the honorable court ,in 2017 the property has been transferred to my name ( the same property was on my mom's name) ,but in 2019 court passed the oder my mom (age is 58)to pay money to that SP ,we went for any appeal in HC and it's in pending from 2019  ,then in district court that SP file for execution of that property ,which is also pending and still we need file a counter pitition ,due to covid the civil proceedings have been frozen ,

That SP influenced my all the lawyers as he knew all the loop holes in IPC/Indian Law ( also he worked in the same place for 5 years ) ,all court proceedings he made and turned all stages on his own way,

But my parents can't even read the petitions ,thos years I was not in different state for my job purpose ,Now everything is over and that SP got the favour able order ,( to pay money) .

Now obviously I have to same this property as we all have only one property.

I hope all professionals an easily understand what happened here .

Our entire family undergone with lots of torture and mental stress from 2014,

But that SP also roaming the court but he has lots of houses and money hence has had no tention ,

As we have only one property we have tention ,

That SP influenced all my advocates in all the stages as he knew all the loop holes .

Kindly understand my situation.

Regards,

Pradeep G