Shaijan vs Varghese
2022 Latest Caselaw 5817 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                    &
             THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
   TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
                       EX.FA NO. 20 OF 2014
 AGAINST THE ORDER DATED 23.08.2013 IN E.A.NO.945 OF 2012 IN
  E.A.NO.840 OF 2021 IN E.P.NO.205 OF 2010 IN O.S.NO.289 OF
        2008 OF THE PRINCIPAL SUB COURT, IRINJALAKUDA
APPELLANT/PETITIONER:

             SHAIJAN
             S/O.THOTTAHIPARAMBIL KUTTAN, ALATHUR VILLAGE AND
             DESOM, MUKUNDAPURAM TALUK.
             BY ADV SRI.T.N.MANOJ


RESPONDENTS/RESPONDENTS:

    1        VARGHESE
             S/O.KANNAMPUZHA OUSEPH, CHAMBANNUR KARA, ANKAMALY
             VILLAGE, ALUVA TALUK.
    2        YOHANNAN STEPHEN
             S/O.PYNADATH OUSEPH, CHAMBANNUR KARA, ANKAMALY
             VILLAGE, ALUVA TALUK.
    3        DILEEP
             S/O.CHETTIPARAMBIL KUMARAN, ALATHUR VILLAGE &
             DESOM, MUKUNDAPURAM TALUK.
             BY ADVS.
             SMT.S.ANJUSHA
             SRI.JOSSY KURIAN
             SRI.K.S.BHARATHAN
             SRI.B.C.MENON



     THIS EXECUTION FIRST APPEAL HAVING COME UP FOR FINAL
HEARING ON 23.05.2022, THE COURT ON 31.05.2022 DELIVERED THE
FOLLOWING:
                                    2

Ex.F.A.No.20 of 2014



                             JUDGMENT

Ajithkumar, J.

The appellant filed E.A.No.945 of 2012 invoking the provisions

of Order XXI, Rule 58 of the Code of Civil Procedure, 1908, in

E.A.No.840 of 2011 in E.P.No.205 of 2010 in O.S.No.289 of 2008

before the Principal Sub Court, Irinjalakuda (Execution Court). That

petition was dismissed by the Execution Court as per the order

dated 23.08.2013. Aggrieved by the said order, this appeal was

filed by the appellant under Section 96 and Order XLI, Rule 1 of the

Code.

2. On 11.03.2014, when the matter came up for admission,

notice was issued to the respondents and delivery of the petition

schedule property was stayed.

3. Heard the learned counsel appearing for the appellant

and the learned counsel appearing for the respondents.

4. The 1st respondent filed O.S.No.289 of 2008 on the basis

of an agreement for sale entered into on 12.11.2007 between the

1st respondent on the one part and respondents 2 and 3 on the

other. That suit was settled in the Adalath and an award was passed

on 29.01.2010. The award allowed the 1 st respondent to realise an

Ex.F.A.No.20 of 2014

amount of Rs.3,20,000/- along with interest from respondents 2

and 3. A charge was created upon the property, which was the

subject matter of the agreement dated 12.11.2007. E.P.No.205 of

2010 was filed by the 1 st respondent and eventually, 10 cents of

property comprised in Sy.No.1238/2 of Alathur Village was attached

and brought on sale. The appellant thereafter filed E.A.No.945 of

2012 claiming that he is the absolute owner in possession of the

said 10 cents of property and therefore the same was not liable for

attachment or sale in execution of the award in O.S.No.289 of

2008. In proof of the said claim, the appellant got himself

examined as PW1 and produced Ext.A1, which is the certified copy

of the sale deed No.2336 of 2008 of Annamanada Sub Registrar's

Office, by virtue of which, the appellant had purchased the said 10

cents of property, which is scheduled to the claim petition.

5. The appellant contended that the compromise decree is

a collusive one and since Ext.A1 sale deed was executed prior to

the filing of O.S.No.289 of 2008 and the 1st respondent did not

venture to challenge the order allowing a similar claim raised by

Smt.Thressiamma in respect of 67 cents of property, which

together with the petition schedule 10 cents formed the subject

matter of agreement dated 12.11.2007, the Court below should

Ex.F.A.No.20 of 2014

have allowed the appellant's claim. The learned counsel appearing

for the appellant would also submit that the respondents did not

adduce any evidence; not even regarding the agreement based on

which the suit was filed and as such the charge created upon the

petition schedule property cannot be the saved.

6. The learned counsel appearing for the 1st respondent, on

the other hand, would submit that the charge was created by virtue

of the provisions of Section 55(6)(b) of the Transfer of Property Act,

1882 and as such the sale taken by the appellant on the previous

day of filing the suit would not invest a valid title with the appellant.

The learned counsel further submits that the very nature of Ext.A1

would establish that it is a product of fraud. When the price agreed

to in the agreement dated 12.11.2007 is Rs.20,000/- per cent, the

total sale consideration for the sale of 10 cents as per Ext.A1 is just

Rs.40,000/-. There was no agreement for sale as is evident from

Ext.A1. The 2nd respondent executed Ext.A1 on 13.05.2008. The

3rd respondent was a witness to it. Suppressing those facts, they

entered into a compromise with the 1st on 29.01.2010 based on

which the Adalat passed the award. The suit was filed on

14.05.2008 in the vacation court. The definite case of the appellant

is that he knew regarding the attachment and the pendency of the

Ex.F.A.No.20 of 2014

execution proceedings from Smt.Thressiamma. Though the award

was passed on 29.01.2010 and the attachment was effected in

2011, after allowing the claim petition filed by Smt.Thressiamma

only the petitioner filed the claim petition, E.A.No.945 of 2012.

Those are the telling circumstances which show that Ext.A1 is a

fraudulent transaction as envisaged in Section 53 of the T.P.Act.

7. Order XXI, Rule 58 of the Code enables the owner of a

property attached in execution of a decree to prefer his claim

before the execution court on the ground that such property is not

liable to such attachment. Here, the petition schedule property was

attached in execution of the award passed by the Adalath in

O.S.No.289 of 2008, which amounts to a decree of the court. But

the attachment apart, the said award created a charge upon the

petition schedule property obviously, in recognition of the statutory

charge that flowed from the agreement for sale dated 12.11.2007.

What is possible under Order XXI, Rule 58 of the Code is to prefer a

claim in objection to the attachment effected by the court. It may

not be possible for an owner of a property upon which a charge has

been created to prefer a claim under Order XXI, Rule 58 of the

Code. However, having the property in question been attached in

execution of the decree in E.P.No.205 of 2010, the claim raised by

Ex.F.A.No.20 of 2014

the appellant is liable to be considered, even in spite of there

having a charge.

8. The respondents did not produce and prove the

agreement for sale in this claim petition. However, the execution

court referred to such documents in the impugned order. The

learned Counsel for the appellant contended that for that reason

itself, the order is liable to be set aside. We are afraid, such a

contention can be entertained in the light of the creation of a

charge on the petition schedule property as per the award dated

29.01.2010. It is beyond dispute that O.S.No.289 of 2008 was filed

on 14.05.2018, the very next day to the execution of Ext.A1. The

filing of a suit on 14.05.2008 presupposes that there was an

agreement for sale that was executed prior to the suit. The case of

the 1st respondent that the agreement was executed in his favour

on 12.11.2007 by respondents 2 and 3 is not seen disputed. Going

by the provision of Section 55(6)(b) of the T.P.Act, a charge on the

property in favour of the buyer is created the moment the

purchase-money, in full or in part, is paid to the seller in

anticipation of the delivery of the property. Since a charge has thus

been created in the award dated 29.01.2010, no more evidence is

required to find that a statutory charge in favour of the 1 st

Ex.F.A.No.20 of 2014

respondent was created on the date of execution of the agreement

for sale. As long as such an award is in existence, no court can go

behind it to consider whether the charge was created legally and

validly. In view of that matter, the contention of the appellant that

the failure of the 1st respondent to produce and prove the

agreement for sale disentitles him from contesting the claim

petition cannot be accepted.

9. In Krishnamenon v. Pradeep Kumar and another

[2017 (1) KLT 479], a Division Bench of this Court (one among

us was a party, Sri.Anil K.Narendran, J.) held that a subsequent

purchaser is not entitled to set forth a contention that he is a bona

fide purchaser without notice of a previous agreement for sale with

respect to the property where there is a statutory charge. It was

held that,-

"The legal position that emerges from the decisions referred to above is that, the provisions under clause (b) of subsection (6) of Section 55 of the Transfer of Property Act, as amended by Act 20 of 1929, makes the charge of the buyer for the purchase-money properly paid effective not only against the seller, but also against all persons claiming under him, irrespective of notice of such payment of purchase-money. Therefore, the charge provided under clause (b) of sub-section (6) of Section 55 of the Act is available even as against a bona fide transferee for value from the seller."

Ex.F.A.No.20 of 2014

In view of the said position of law, the appellant cannot be heard to

contend that he is a bona fide purchaser and therefore his claim

has to be sustained.

10. As pointed out by the learned counsel appearing for the

1st respondent, Ext.A1 was executed for a totally inadequate sale

consideration. The consideration agreed as per the agreement

dated 12.11.2007 was Rs.20,000/- per cent. The learned counsel

for the appellant submitted that the consideration for the sale of 67

cents of property in favour of Smt.Thressiamma was Rs.39,000/-

per cent. The learned counsel tried to justify that Ext.A1 is a valid

document since the actual consideration paid was Rs.2 lakhs and to

save the stamp duty alone such a lesser amount of Rs.40,000/-

was shown in Ext.A1 and the oral testimony of PW1 in that regard

has to be accepted. Oral evidence regarding sale consideration,

which goes against the recital in the sale deed, which undoubtedly

is a term of the contract, cannot be allowed in evidence in view of

the bar under Section 92 of the Indian Evidence Act, 1872. The said

contention of the appellant, in fact, improbabilises his own case.

Ext.A1 was executed on the eve of filing of O.S.No.289 of 2008.

Without there having a previous agreement, 10 cents of land was

so executed, for a paltry sum compared to the actual value of the

Ex.F.A.No.20 of 2014

land. The appellant waited to prefer his claim till the claim initiated

by Smt.Thressiamma was allowed. Those circumstances show that

Ext.A1 is a fraudulently created document and comes within the

mischief of Section 53 of the T.P.Act. The claim put forward by the

appellant on the basis of such a document can only be termed as

an attempt to defeat the claim of the 1 st respondent as per the

award dated 29.01.2010. The courts below has considered every

aspect of the matter before concluding that the claim of the

appellant is unsustainable on facts or in law. We do not find any

reason to interfere with the said finding. Therefore, the appeal is

liable only to be dismissed, and we dismiss the appeal with costs of

the 1st respondent.

Sd/-

ANIL K.NARENDRAN JUDGE

Sd/-

P.G. AJITHKUMAR JUDGE dkr