JUDGMENT : EASWARAN S., J. This appeal is at the instance of a claim petition an application under Order 21 Rule 58 of the Code of Civil Procedure. The appellant claimed title over the petition schedule property by virtue of a registered assignment in her favour by the second respondent herein on 26.08.2002. The first respondent took out execution proceedings for execution of judgment and decree in O.S.No.256 of 2006, which is a decree for recovery of money against the third respondent company, of which the second respondent is the Managing Director. The appellant claimed that the property absolutely vested in her by the transfer effected way back in 2002 and that the attachment before judgment obtained in O.S.No.256 of 2006 cannot operate against her interest. Thus, it was contended that as on the date of attachment, there is no interest subsisting on the petition schedule property in favour of the second respondent, who is the judgment debtor in the suit. The executing court, however, rejected the claim by holding that transfer under Ext.A1 is vitiated and is hit by Section 53 of the Transfer of Property Act and accordingly dismissed the claim petition. Aggrieved, the appellant preferred A.S.No.164 of 2014, which was dismissed by the II Additional District Court, Kozhikode and hence the present appeal. On 09.10.2015, this Court admitted the appeal and granted on the substantial questions of law framed in the memorandum of appeal, which reads as follows: “i. Was not the courts below bound to consider the issue as to whether the liability of a private limited company can be fastened on its directors? ii. Whether for realization of amounts due from the company, the property of the appellant that was transferred much prior to the institution of the suit and much prior to the order of attachment be proceeded against? iii. In the absence of any existing debt, attachment or charge on the property as on the date of transfer, whether the property transferred much before the institution of the suit be said to be hit by S.53 of the Transfer of Property act? iv. In the absence of any evidence to show that the transfer effected years before the suit was instituted, the property was undervalued, was not the court below in error in arriving at a presumption that the transfer was with an intend to defeat or delay the creditors? iv. In the absence of any evidence to show that the transfer effected years before the suit was instituted, the property was undervalued, was not the court below in error in arriving at a presumption that the transfer was with an intend to defeat or delay the creditors? v. When transfer of a property is effected before the attachment and when the 2nd respondent had no right over the property attached, were not the courts below wrong in not allowing the claim for the said reason alone? vi. Whether in the light of the fact that transfer was made before the attachment was effected, the courts below were required and justified in going into the question whether the said transfer was fraudulent or not and hence hit by Section 53 of the Transfer of Property Act? vii. Was not the courts below not in error to have found that the contention raised by the 1st respondent regarding Ext.A1 to be a sham document is contrary to the contention raised by the 1st respondent basing on S.53 of the T.P Act in so far as if the contention of the 1st respondent is that Ext.A1 is a sham document, then S.53 will have no application, for a challenge based on S.53, the decree holder must admit the transfer as a real one, but with fraudulent intention? viii. Whether the transfer of the claim petition schedule property made by the 2 nd respondent vide Ext.A1 in favour of the appellant is a fraudulent transfer as defined in S.53 of the Transfer of Property Act? ” 2. Heard Sri.L.Rajesh Narayan Iyer, learned counsel for the appellant and Sri.P.V.Shailajan, learned counsel for the first respondent. 3. Sri.L.Rajesh Narayan Iyer, learned counsel for the appellant pointed out that in respect of the sale transaction, in O.S.No.97 of 2005, there was an attachment and that a claim petition preferred under Order 21 Rule 58, was allowed and that an appeal preferred in A.S.No.58 of 2014 was dismissed by the first appellate court and there is no further challenge to that. 4. 4. He further pointed out that going by the decision of the honourable Supreme Court in L.K.Prabhu@L. Krishna Prabhu Vs K.T. Mathew @ Thampan Thomas [2025 SCC Online 2577] at the time of passing of an order of attachment before judgment, if the judgment debtor is divested of the right title and interest over the property, the attachment cannot operate against the rightful claimant. He further pointed out that the finding of the courts below that the sale in question is vitiated by the provisions of Section 53 of the Transfer of Property Act, 1882 cannot be accepted because there was no material before the courts below to conclude that the sale is vitiated. 5. Per contra, Sri.P.V.Shailajan, learned counsel appearing for the first respondent supported the findings of the courts below and contended that the concurrent findings reported by the courts below cannot be interfered in exercise of the powers under Section 100 of the Code of Civil Procedure, 1908. He further pointed out that going by the material pleadings in the application filed by the appellant herself, a clear case of application of Section 53 of the Transfer of Property Act is attracted and therefore, the courts below had correctly concluded that the sale is vitiated and hit by Section 53 of the Transfer of Property Act. He further submitted that the executing court has every power to go into the question as to whether a sale is intended to defeat the creditor and hence the order of the executing court is perfectly correct. In support of his contentions relied on the following decisions N.N.L Ramaswami Chettiar Vs. Mallappa Reddiar [AIR 1920 Mad 748], Ramachandran T.K. Vs Balachandran K and another [ 2019(5) KHC 157 ], Jose Vs V.P. Devassy [ 2025 KHC 513 ], United Industries(India) Vs Mathai [1985 KHC 278], C.Abdul Shukoor Saheb Vs Arji Papa Ra0 (deceased) heirs and LRs [1963 KHC 602]. 6. I have considered the rival submissions raised across the Bar, perused the judgments rendered by the courts below and records of the case. 7. 6. I have considered the rival submissions raised across the Bar, perused the judgments rendered by the courts below and records of the case. 7. Though this Court had issued notice on the substantial question of law as framed in the appeal, for the purpose of dismissal of the appeal, this Court felt that the substantial questions of law require to be re-framed as follows: (a) Whether as on the date of the order of attachment in O.S.No.256 of 2006, whether the second respondent had any right title and interest over the property. (b) Whether the transaction number Ext.A1 is hit by Section 53 of the Transfer of Property Act. 8. As regards the first substantial question of law, the same is no longer res integra in the light of the decision of the honourable Supreme Court in L.K.Prabhu (supra). In the present case, admittedly the sale in favour of the appellant is on 26.08.2002 and that the attachment before judgment was obtained only in the year 2006. Therefore, as on the date of the attachment before judgment, the second respondent was divested on right title in the interest over the property. If that be so, the attachment ordered in the suit has no efficacy of law. 9. The next question is whether the transaction in question is hit by Section 53 of the Transfer of Property Act, no doubt the executing court is empowered to go into the question. But the pertinent question is whether the first respondent/decree holder had a case that the transaction is hit by Section 53 of the Transfer of Property Act. In order to attract the provisions of Section 53 of the Transfer of Property Act, there must be clear evidence to show that the transaction was intended to defraud the creditors. What is now projected before the courts below is that there was a fixed deposit in the year 2001 taken by the third respondent company from the first respondent decree holder and that the sale in question was in the year 2002. 10. What is now projected before the courts below is that there was a fixed deposit in the year 2001 taken by the third respondent company from the first respondent decree holder and that the sale in question was in the year 2002. 10. The said finding cannot obviously stand because of the fact that as finally pointed out by the learned counsel for the appellant, in yet another proceedings, the claim based on Ext.A1 title deed was upheld and the claim petition was allowed against which A.S.No.58 of 2014 before the Additional District Court – IV, Kozhikode was filed which ended in dismissal on 08.04.2015. Therefore, if it is a case of a fraudulent transaction under Section 53 of the Transfer of Property Act, that obviously there should be material relinquished to that effect supported by cogent evidence, which is not available in the present case. 11. As regards the applicability of cited decisions are concerned, this Court is of the view that each case called before this Court presents a different set of facts altogether which would deter this Court from applying the principles. For the sake of completion, this Court will discuss the applicability of the decisions cited across the Bar. 12. In United Industries (India)(supra) the Division Bench of this Court considered a case where a compromise decree was passed and thereafter an execution petition was filed. During the pendency of the execution petition, the property was sold. It is in this context the Division Bench held that the transfer was with intention to defeat the creditors. 13. Similar is the situation in Jose (Supra) where the gift deeds were executed within 23 to 24 days of execution of the construction agreement. No doubt this court held in Ramachandran T.K.(supra) that the power of the executing court to decide whether a transfer is hit by Section 53 can be considered even if the sale deed is executed prior to the suit. 14. However, in the present case, admittedly the transfer is in the year 2002 whereas the suit itself is filed in the year 2006. The attachment before judgment was ordered only in the year 2006. Therefore, when a registered document is executed for conveyance, the plaintiff was well within his wisdom to have sought for a relief of setting aside the same. The attachment before judgment was ordered only in the year 2006. Therefore, when a registered document is executed for conveyance, the plaintiff was well within his wisdom to have sought for a relief of setting aside the same. Had such a relief been sought for in the suit, a more comprehensive enquiry could have been conducted as regards the transaction entered by the parties. 15. Admittedly, the only connecting point in the case to link with the transaction is the acceptance of a fixed deposit of Rupees one lakh by the company. The sale deed is executed in respect of the private property of the Managing director in favour of his wife. This may have perhaps created doubt in the minds of the court. The quality of evidence adduced by the decree holder does not persuade this Court to hold that he was successful in proving the elements of Section 53 of the Transfer of Property Act, 1882. Therefore, this Court is of the considered view that the transaction cannot be set aside invoking Section 53 of the Transfer of Property Act, 1882. In the light of the above discussion, this Court is inclined to hold that the orders passed by the executing court as affirmed by the first appellate court is perverse and is unsustainable under law. Accordingly, answering the substantial questions of law as framed in favour of the appellant, this Court holds that the judgment and decree of the II nd Additional District Court, Kozhikode in A.S.No.164 of 2014 affirming the order dated 24.11.2011 in E.A.No.361 of 2009 in E.P.No.150 of 2008 in O.S.No.256 of 2006 of the 1 st Additional Sub Court, Kozhikode cannot be sustained. Accordingly, the order impugned in the Execution Proceedings as concurred in the 1 st appeal is reversed and E.A.No.361 of 2009 in E.P.No.150 of 2008 in O.S.No.256 of 2006 will stand allowed. The attachment ordered in E.P.No.150 of 2008 in O.S.No.256 of 2006 will stand lifted. It is further to be noted that since this Court had interdicted the confirmation of sale in E.P.No.150 of 2008 in O.S.No.256 of 2006, pursuant to this judgment, the sale, if any, conducted in E.P.No.150 of 2008 in O.S.No.256 of 2006 will stand cancelled forthwith. The attachment ordered in E.P.No.150 of 2008 in O.S.No.256 of 2006 will stand lifted. It is further to be noted that since this Court had interdicted the confirmation of sale in E.P.No.150 of 2008 in O.S.No.256 of 2006, pursuant to this judgment, the sale, if any, conducted in E.P.No.150 of 2008 in O.S.No.256 of 2006 will stand cancelled forthwith. The Sub Court, Kozhikode is directed to drop all further proceedings against the petition schedule property and right in the attachment over schedule property forthwith on receipt of the copy of the judgment and communicate the same to the concerned Sub Registry Office without any delay.