The Kerala High Court has held that the personal properties of a judgment debtor’s wife cannot be attached in an execution petition even if she knew that her husband gifted his property to her in order to defeat the decree holder’s claim. [2026 LiveLaw (Ker) 467]
Justice Easwaran S. clarified that in such circumstances, the decree holder would not be rendered remediless and he can apply for vitiating the fraudulent gifting by making an application as per Section 53 of the Transfer of Property Act, 1882.
The petitioner (decree holder) had obtained a foreign decree from a UAE court in his favour. The 1st respondent (judgment debtor) against whom the decree was passed, escaped to India to avoid an arrest order from the foreign court.
Immediately after coming to know about the same, the petitioner filed an execution petition in India but the judgment debtor had already gifted his property to his wife a month before. The wife had also mortgaged the property and later cleared dues at the bank and sold the same to a third party.
The decree holder impleaded the wife in the execution petition and filed an application to attach her personal properties. The execution court dismissed the application saying that Code of Civil Procedure does not enable decree holder to attach independent properties of judgment debtor’s wife.
Aggrieved, he approached the High Court. He contended that the judgment debtor and his wife are governed by Mohamedan Law and, that since she was aware of her husband’s fraudulent act in gifting her the property to defeat the decree holder’s rights as a creditor, her property is also liable for the debt.
Considering the rival contentions, the Court agreed with the execution court and observed:
“this Court could not find any provision either in the personal law of the parties nor under the Code of Civil Procedure, 1908, nor under the Transfer of Property Act, 1882, enabling the petitioner/decree holder to proceed against independently, the properties of the wife of a judgment debtor. Irrespective of the nature of the personal law governing the parties, once a decree has been passed by the Court, the decree holder cannot travel beyond the scope of the decree and then proceed against the parties based on the personal law.”
However, the Court pointed out that the petitioner/decree holder can apply for the executing court to exercise power under Section 53 TP Act to declare the gift transaction as void after enquiry to see if it was done to defeat his claim.
The Court gave the petitioner liberty to make such an application before the executing court. It was also observed that if such a request is made, the executing would be bound to conduct an enquiry, applying the principles under Section 53. If it is found that execution of the gift was to defeat the decree holder’s right, the gift and consequential sale would be vitiated.
Case No: OP(C) No. 3172 of 2025
Case Title: Abdul Basith Kurikkalakath v. Shafi Mohammed @ Shafi Mohamed Khalid and Ors.
Citation: 2026 LiveLaw (Ker) 467
Counsel for the petitioner: Abdul Raoof Pallipath, E. Mohammed Shafi, Prajit Ratnakaran, Ganga A. Sankar, Krishnapriya R., Anju Dony
Counsel for the respondents: C.S. Rajani, V.R. Kesava Kaimal, M. Sasindran, Sohail Ahammed Harris P.P.