Execution pitition to attach the property in bond case

Dear Mr Pradeep, 

As per your query the judgment debtor (lady against whom court has passed decree) has transferred the property to her son to evade the execution of decree which was passed in your favour. Now you want to know what are your options. Please note the following:- 

1. In India, no one takes civil court seriously because the procedure in civil court is so complex that it takes years to get the decree executed. In the mean time the judgment debtor arranges his affairs so as to evade the decree altogether. Just like in your case where the lady has transferred her property to her son to evade the decree. 

If the property was transferred before the decree was passed then in that case you really are helpless and cannot do anything about it. 

But if the property was transferred after decree was passed then you may file a complaint to judicial magistrate First class under section 421, 422, & 424 IPC on the ground that the transfer of property to son has been done specifically to evade execution of decree. Although the complaint will have to be properly drafted and filed in the court of judicial magistrate first class. 

Further, file execution application in court which passed the decree. REMEBER A FEMALE CANNOT BE ARRESTED IN EXECUTION OF A CIVIL DECREE FOR PAYMENT OF MONEY (see section 56 CPC). But a female can be arrested for criminal offence.

All the best. 

Regards

Shubham Bhardwaj (Advocate)

District & Session Court, Chandigarh

Punjab & Haryana High Court, At Chandigarh

Disclaimer:- The opinion is just for guidance. 

Hello Sirji, Great thanks for your swift response , I filed a case in 2014 on this case ,but sessions court passed the order in 2019 to pay the money with interest, That jobless lady transferred her property to her son in 2017 ,Now appeal is pending in HC, but I filed for her son's property attatchement  (earlier that property was on her lady name) , Now can I claim her son's property?

Kindly help me

Dear Mr Pradeep, 

No you cannot claim her son's property. The executing court cannot go beyond the decree. This means that the judgment holder in the decree is the lady and not her son. Further, since the lady had transferred her property before the decree therefore your option of filing complaint u/s 421, 422, 424 IPC is also not available. 

While the case for under adjudication before the trial court you should have filed Application under Order 37 for attachment of property before decree on the ground that there is a likelihood of property being transferred. But since the water has already flown thus this is not possible now.  But you may continue with the appeal. There are other modes of recovery such as garnishee orders. Although the chances would be very less. Garnishee order means recovery from a person who owes money to judgment debtor (lady). But it is difficult to find out who owes money to the lady. 

However, I m still thinking and if I find something new, I will let you know. 

Regards

Shubham Bhardwaj (Advocate)

Great thanks Sirji

There is small typographical error in this message in LINE 2. 

Read " JUDGMENT DEBTOR" and not JUDGMENT HOLDER.

Regards 

Have you secured such certified copy of such a sale deed/transfer deed?  What is the opinion of your advocate about other criminal charges of transferring the property during lis pendense to cheat the creditors as fraud?

There was no court order about that property till now ,the order is just to pay the money that's it .that's why the old and poor lady transferred the property on her son's name , now her son also took the loan of 15 lakhs on that property ,now court can't attach that property as per the IPC rules .

Very well analysed, opined and advised by expert Mr. Shubham Bhardwaj, I fully agree and appreciate.

Thanks for the reply Sir , So,There was no court order about that property till now ,the order is just to pay the money that's it .that's why the old and poor lady transferred the property on her son's name , now her son also took the loan of 15 lakhs on that property ,now court can't attach that property as per the IPC rules?
 

Thank you for your compliment Vashista Sir.. 

Regards

What do you mean by "She has changed her property to her son's name"?

How this change has been effected? Was it through a conveyance deed or mere mutation in the revenue records?

If, indeed, a conveyance deed was executed, was it a settlement, gift or a sale? If a sale, had the lady received  consideration at market value?

Who is in possession/occupation of the property? If a residence, how it is being utilised?

 

The property was a gift sale deed which has a sale deed happened in registration office on her Son's name,That lady and her husband and her son all are staying in the same house ,

Actually owner of that property was her father in-law ,who is the grand father of her son,

So her son has full rights on his grand father's property now,

However during that grandfather's death ,that old man written will registration on her daughter in-law ,then the sons mother gifted that property to her son as a gifted sale deed ,

Now her son also taken mortgage loan on the same property ,

Now how can I do the propert attachment in my execution pitition based on the decree ?

Kindly help.

Why lady needed such a huge amount and what is the purpose of the loan stated in court proceedings and how the proceeds were utilized by the housewife?

There may be deeper issues involved and even the will is doubtful.  When his son is very much alive, what is the need to register the property in the name of daughter in law as a gift ?

What are the occupations of the family and the reasons for mortgaging the property by son for the bank loan?  Was this an undivided Hindu family ?  Has this lady anything to do with such business.?  What was her counter to your money recovery suit ?  

Are you their relative?

Honestly, I feel that gift deed amounts to fraud as to evade creditors, the lady has gifted the property during litigation but I am a lay man and only experts can search for such precedents and citations.

There was no pending order on that property till now ,court just informed that old and uneducated lady to pay the money that's it , however before the decree itself she gave her property as a gift to her son with proper registration , now how can we attach her son's property though we got the decree on her ?

Is it possible as per law, asho her son paid three years house tax to the government and also paid the registration charges to sub registrar office .