Sukumaran Nair v. Sethukutty Amma and Sarojini Amma

OP(C) NO. 1334 OF 2013 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 19[TH] DAY OF OCTOBER 2022 / 27TH ASWINA, 1944 OP(C) NO. 1334 OF 2013** **AGAINST THE ORDER/JUDGMENTIN OS 950/2005 OF I ADDITIONAL** **MUNSIFF COURT ,TRIVANDRUM** ## **PETITIONER/S:** SUKUMARAN NAIR AGED 43 YEARS ELLUVILA VEEDU,KARODE, VILAPPIL VILLAGE,THIRUVANANTHAPURAM BY ADVS. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL ## **RESPONDENT/S:** 1 SETHUKUTTY AMMA D/O.D/O.LEKSHMIKUTTYAMMA, SANTHOSH BHAVAN,PUTUMENKONAQM,VILAPPILSALA P.O NOW RESIDING AT REVATHY NIVAS,VRINDAVAN GARDENS,KODUNGANOOR P.O THIRUVANANTHAPURAM 695 031 2 SAROJINI AMMA W/O. GOPALAKRIOSHNAN NAIR VISHNUVALLAM,KUTTAMANKONAM,VILAPPILSALA P.O,THIRUVANANTHAPURAM 695 103 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 1334 OF 2013 2 ## **JUDGMENT** Aggrieved by Ext.P4 order dated 19.11.2012 in E.P.No.89/2011 in O.S.No.950/2005 of the Court of the First Additional Munsiff (Trial/Execution Court), Thiruvananthapuram, the decree holder has filed the original petition. The respondents are the judgment debtors before the court below. 2. The concise case of the petitioner, relevant for the determination of the original petition, is: the petitioner has filed the above execution petition to attach and sell the execution schedule property pursuant to the decree passed in his favour in the above suit. The suit was one filed for realisation of money based on an agreement of sale. As the 1[st] respondent failed to comply with the conditions in the agreement, the petitioner filed the suit for recovery of the advance sale consideration charged on the plaint schedule property. The suit was dismissed by the Trial Court. The petitioner challenged OP(C) NO. 1334 OF 2013 3 the decree by filing A.S.No.220/2008 before the Court of the District Judge, Thiruvananthapuram (Appellate Court). The Appellate Court allowed the appeal and set aside the judgment and decree. The Appellate Court decreed the suit permitting the petitioner to recover from the 1[st] respondent an amount of Rs.87,750/- with interest at the rate of 12% per annum. The petitioner filed the execution petition to realise the amount from the 1[st] respondent and the execution schedule property. The 2[nd] respondent resisted the execution petition by filing Ext.P3 objection. The Execution Court, by the impugned Ext.P4 order, rejected the petitioner's prayer to proceed against the property on the ground that there is no charge against the same. Ext.P4 is erroneous and is passed in violation to Section 55(6)(b) of the Transfer of Property Act, 1882. Hence, the original petition. 3. Heard; Sri. R.Sunil Kumar, the learned counsel appearing for the petitioner. Even though service of OP(C) NO. 1334 OF 2013 4 notice is complete on the respondents, there is no appearance for them. 4. The point is whether there is any error or illegality in Ext.P4 order. 5. The case of the petitioner in Ext.P1 plaint was that he had entered into an agreement of sale with the 1[st] respondent to purchase the execution schedule property. Even though he paid an advance sale consideration of Rs.75,000/- to the 1[st] respondent, he refused to sell the property to the petitioner. Hence, he filed the suit for a decree to realise the advance sale consideration. 6. The suit was dismissed by the Trial Court, but was later decreed by the Appellate Court. The petitioner laid the decree to execution by filing Ext.P2 execution petition, inter-alia, to proceed against the execution schedule property over which he had a statutory charge. 7. The Execution Court, by the impugned Ext.P4 order, held that as the 1[st] respondent had already sold OP(C) NO. 1334 OF 2013 5 the property to the 2[nd] respondent, a bonafide purchaser, the petitioner cannot proceed against the property as there was no charge over the property and the Appellate Court had not passed a decree with a charge over the property. 8. Section 55 (6) of the Transfer of Property Act reads as follows: ## “(6) The buyer is entitled— (a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof; **(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount;** and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission. An omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a), and paragraph (5), clause (a), is fraudulent”. OP(C) NO. 1334 OF 2013 6 # 9. Interpreting Section 55(6) of the Act, this Court in **Molly Ajithkumar v. Vimala Sasidhran and another** [2012 (1) KHC 374 has held as follows: “9. At the time when the compromise was entered into on 27.8.2005, the vendor had no title to the property as he had transferred the property to his daughter (revision petitioner) on 21.7.2005. Therefore, it may be true that the vendor could not create a charge over the property by a compromise entered into between him and the vendee. Even if the compromise is otherwise found to be enforceable, the charge created as per the terms of the compromise may not as such be available as against the revision petitioner, unless it is established that the transfer in favour of the revision petitioner was a fraudulent transfer. **The statutory charge under Section 55(6)(b) of the Transfer of Property Act would never be lost to the vendor even though he has not filed a suit for specific performance on the basis of the agreement for sale. For the purchase price paid by him, he is entitled to a charge over the property. The legal requirement is that he has not improperly declined to accept delivery of the property. There is no case for the revision petitioner or her father that the buyer ever improperly declined to accept delivery of the property.** The principle underlying Section 55(6)(b) of the Transfer of Property Act is a principle of justice, equity and good conscience. **The buyer's charge under Section 55(6)** OP(C) NO. 1334 OF 2013 7 **(b) is a statutory charge as distinguished from a contractual charge. The charge comes into force the moment the buyer pays the purchase money or any part thereof. The charge would be lost only if the buyer commits default.** The subsequent compromise entered into between the seller and the buyer and that too at a time when the seller had lost title, would not efface the statutory charge available to the buyer under Section 55(6)(b) of the Transfer of Property Act. For the aforesaid reasons, I am of the view that the order passed by the executing court does not call for any interference as there is no error of law or error of jurisdiction in the proceedings. 10. The view in **Molly Ajithkumar** (supra) has been reiterated by a Division Bench of this Court in **Krishnamenon v. Pradeep Kumar and another [2017 (1) KHC 283 (DB)].** 11. On a reading of the law laid down in **Molly Ajithkumar,** it is explicitly clear that a statutory charge comes into force the moment the buyer pays the money or any part thereof to the seller. The charge would only be lost if the buyer commits a default in performing his OP(C) NO. 1334 OF 2013 8 part of the contract. 12. In the case at hand, undisputedly, the 1[st] respondent sold the plaint schedule property to the 2[nd] respondent, subsequent to the agreement of sale and receipt of the money from the petitioner. 13. In the light of the above provision and its interpretation, I have no doubt in mind that the statutory charge would override the subsequent transaction between the respondents 1 and 2. Therefore, the finding in Ext.P4 order that, as the 1[st] respondent had sold the property to the 2[nd] respondent prior to the decree is of no consequence. There cannot be estoppel against law. In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I allow the original petition in the following manner: (i) Ext.P4 is set aside. OP(C) NO. 1334 OF 2013 9 (ii) The Execution Court is directed to proceed with E.P.No.89/2011, in accordance with law, as per the observations made above and bring the execution petition to its logical conclusion, as expeditiously as possible. Sd/- **C.S.DIAS, JUDGE** rkc/19.10.22 10 OP(C) NO. 1334 OF 2013 ## **APPENDIX OF OP(C) 1334/2013** PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE PLAINT IN O.S NO 950/2005 EXHIBIT P2 COPY OF THE E.P NO 89/11 EXHIBIT P3 COPY OF THE OBJECTION IN E.P NO 89/2011 EXHIBIT P4 COPY OF THE ORDER IN E.P NO 89/11 IN OS NO 950/2005