Jayan vs Jayan
2021 Latest Caselaw 4506 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

            THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                               &

          THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

  MONDAY, THE 08TH DAY OF FEBRUARY 2021 / 19TH MAGHA,1942

                       Ex.FA.No.3 OF 2021

AGAINST THE ORDER DATED 6-1-2021 OF THE ADDITIONAL SUB
JUDGE I, THRISSUR IN E.A NO.793 OF 2020 IN EP NO.96 OF 2014
IN O.S NO.940 OF 2013.

APPELLANT/CLAIM PETITIONER/3RD RESPONDENT        :

              JAYAN, AGED 49, S/O GOPI, THEKKETHARA HOUSE,
              THRISSUR TALUK, CHEMBUKUKKU VILLAGE,
              MAILIPADAM DESOM, REP BY POWER OF ATTORNEY
              HOLDER AND WIFE HONEY VARGHESE, AGED 38,
              D/O VARGHESE, THENGAPURAKKAL VEETTIL,
              NORTH PARAVUR TALUK VARAPPUZHA VILLAGE,
              THEVARKKAD DESOM, ERNAKULAM

              BY ADV. SRI.DILIP J. AKKARA.

RESPONDENTS/RESPONDENTS/DECREE HOLDER,RESPONDENTS 1 & 2      :

      1     MURALIDHARANN, AGED 72 YEARS,
            S/O VELAYUDHAN, PANDARAPARAMBIL VEETTIL,
            MUKUNDAPURAM TALUK, KODAKKARA VILLAGE,
            VAZHIYAMBALAM DESOM, THRISSUR-680 684.

      2     MANAGER, S.B.T.S.M.E BRANCH, THRISSUR-680 001.

      3     GOPI, AGED 71 YEARS, S/O KARAPPAN, CHEMBUKUKKU
            VILLAGE, MAILIPADAM DESOM, THRISSUR-680 620.

              R1 BY ADV. MANOJ T.N. (CAVEATOR)
              R1 BY ADV. SRI.T.N.MANOJ

     THIS EXECUTION FIRST APPEAL HAVING COME UP              FOR
ADMISSION ON 08.02.2021, THE COURT ON THE SAME               DAY
DELIVERED THE FOLLOWING:
 Ex.F.A No.3 of 2021                     2




                      A.HARIPRASAD & P.V.KUNHIKRISHNAN, J J.

                      --------------------------------------
                                Ex.F.A No.3 of 2021
                      --------------------------------------
                      Dated this the 8th day of February, 2021


                                 JUDGMENT

A.HARIPRASAD, J

Heard the learned counsel for the appellant and respondents.

2. Appellant is not a party in O.S No.940 of 2013 before the

Additional Sub Judge - I, Thrissur. Third respondent is the plaintiff in the

above suit. The sole defendant therein is the first respondent. The suit was

one for specific performance of a contract said to have been executed

between respondents 1 and 3. The defendant in that suit (first respondent)

took up a contention that the alleged agreement was not enforceable. He

put up serious contentions in his written statement. However, the suit was

settled between the parties in a mediation and thereafter they executed a

compromise under Order XXIII Rule 3 C.P.C. In terms of the compromise,

the suit was decreed. While the suit was pending, the first respondent

assigned the subject matter of the suit in favour of the present appellant,

who is none other than his own son. As per the terms of the decree, the first

respondent had to pay certain sum of money to the third respondent. When

the decree was not obeyed as promised, it was put to execution. In that

execution petition (E.P No.96 of 2014), the appellant filed E.P No.793 of

2020 under Order XXI Rule 58 C.P.C claiming an independent right over

the property. Fact remains that the appellant, who is the son of the first

respondent, is an assignee pendente lite. Settled legal principle is that an

assignee cannot have a better claim than his assignor. Even though the

assignor (first respondent) has raised so many contentions in the suit, by

settling the disputes, he has impliedly withdrawn all his contentions.

Therefore, the appellant cannot be heard to challenge the merit of the

matter.

3. Learned counsel submitted that the appellant has secured an

interest in the property pending the suit as there was no order of

attachment over the land before judgment. Per contra, learned counsel for

the third respondent submitted that the statutory charge created under

Section 55(6)(b) of the Transfer of Property Act (in short 'T.P Act') is an

indefeasible right accrued to the third respondent. It is also pointed out that

only on account of the breach on the part of the first respondent, the

assignment of property could not be completed. Therefore, the ingredients

under Section 55(6)(b) of the T.P Act is squarely attracted in this case. We

agree with the submission of the learned counsel for the third respondent.

Having regard to the facts and circumstances, we are of the

view that the appellant can claim the property only subject to the statutory

charge created under Section 55(6)(b) of the T.P Act. It is pointed out by

the learned counsel for the third respondent that the sale has already taken

place and it is posted for confirmation. In our view, the only option

available to the appellant is to discharge the liability created on the

property as per the compromise decree and salvage the property. Learned

Sub Judge has considered all the matters in the correct perspective. We find

no reason to interfere in the matter. Hence, the execution first appeal is

dismissed.

All pending interlocutory applications will stand dismissed.

A. HARIPRASAD, JUDGE.

P.V.KUNHIKRISHNAN, JUDGE amk