Shaijan s/o ThottaHIPARAMBIL Kutttan v. Varghese s/o Kannamppuzha Ouseph and Yohannan Stephen s/o Pynadath Ouseph and Dileep s/o ChetTiparambil Kumaran

## **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 31[ST] 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 1[st] respondent filed O.S.No.289 of 2008 on the basis of an agreement for sale entered into on 12.11.2007 between the 1[st] 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 3 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 1[st] 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 4 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 1[st] 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 5 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 6 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 1[st] 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] 7 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 1[st] 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.” 8 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 1[st] 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 9 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 1[st] respondent. ## **Sd/-** ## **ANIL K.NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** dkr