Bela M. Trivedi, J. - (1.) THE present petition filed under Sec. 115 of CPC is directed against the order Dt. 10.8.2007 passed by the Addl. District Judge No. 4, Jaipur City, Jaipur (hereinafter referred to as 'the Executing Court'), in Objection Application No. 47/06, whereby the Executing Court has allowed the said application and released the property in question belonging to the respondent No. 1 -objector from the attachment made by the Court on 18.04.2006 in the Execution Petition No. 12/06 filed by the petitioner -plaintiff -judgment creditor. The short facts giving rise to the present petition are that the petitioner -plaintiff had filed the suit against the respondent Nos. 2 and 3 -defendants seeking recovery of Rs. 2,10,000/ - in the Court of District Judge, Jaipur City, Jaipur (hereinafter referred to as 'the trial Court') on 08.09.2005. In the said suit an ex -parte decree came to be passed against the said respondents -defendants on 07.01.2006. The petitioner -judgment creditor thereafter filed an execution petition before the Executing Court on 04.04.2006 and also prayed for the attachment of the property in question. The Executing Court vide order Dt. 18.04.2006 attached the said property by passing the following order: - -
(2.) THE present respondent No. 1 -the objector thereafter filed the application being No. 47/06 seeking removal of the said attachment stating inter alia that the property in question was purchased by him from the respondent No. 3 Smt. Preeti Sharma W/o. Shri Jagdeep Sharma by registered sale -deed Dt. 28.09.2005, for which he had already paid the sale consideration by cheque on 07.09.2005. The Executing Court allowed the said application of the respondent No. 1 and released the property from attachment vide the impugned order Dt. 10.08.2007. It has been sought to be submitted by the learned counsel Mr. G.P. Sharma for the petitioner that the respondent Nos. 2 and 3 with a view to defeat the decree to be passed in the suit had sold out the said property to the respondent No. 1, which could not be said to be a bona fide transaction. He further submitted that as per the provisions contained in Order XXI Rule 58, the objection application of the respondent No. 1 was required to be decided by the Executing Court, as the suit permitting the parties to lead the evidence. He has relied upon the decision of the Apex Court in case of Barnes Investments Ltd. v. Raj. K. Gupta, : AIR 2001 SC 2818 and the decision of this Court in case of Smt. Poona Devi & Ors. v. Prem Narain Th. Lrs. Smt. Gulab Devi & Ors., : 2007(1) WLC(Raj.) 351 in support of his submissions. Pressing into service Section 53 of the Transfer of Property Act, he submitted that any transfer of immovable property made with the intent to defeat the creditor of the transferor shall be voidable at the option of the creditor so defeated.
(3.) HOWEVER , the learned counsel Mr. S.B. Gupta appearing for the respondent No. 1 submitted that the respondent No. 1 being the bona fide purchaser for value without notice, the Executing Court has rightly released the property from attachment. He has also submitted that the property in question was already purchased by him prior to the filing of the suit by making full payment to the respondent Nos. 2 and 3 by cheque and that the suit being for recovery of money and not in respect of the immoveable property, it could not be said that the transfer was made to defeat the decree that might be passed in the suit.;