Viswanathan P v. Mohanakrishnan and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945 EX.SA NO. 9 OF 2023 ``` ``` AGAINST THE JUDGMENT IN A.S.NO.59/2021 OF ADDITIONAL DISTRICT COURT - ``` ``` V, KOZHIKODE ``` ``` E.A.NO.70/2021 IN E.P.NO.661/2017 IN O.S.NO.95/2012 OF I ADDITIONAL SUB COURT, KOZHIKODE ``` ``` APPELLANT/4TH APPELLANT IN A.S.NO.59/2021/4TH PETITIONER IN E.A.NO.70/2021/NOT PARTY TO E.P.NO.661/2017/NOT PARTY IN OS NO.95/2012: ``` ``` VISWANATHAN P, AGED 47 YEARS S/O LATE RAGHAVAN NAIR, AGED 47, 'KOLATHAYIL HOUSE', PALLIPPURAM, OLAVANNA, KOZHIKODE ., PIN - 673019 ``` ``` BY ADVS. R.RANJANIE R.LAKSHMI NARAYAN ``` ``` RESPONDENTS/RESPONDENTS 1 AND 2 AND APPELLANTS 1 TO 3 AND 5 TO 8 IN A.S.NO.59/2021/RESPONDENTS 1 AND 2 AND PETITIONERS 1 TO 3 AND 5 TO 8 IN E.A.NO.70/2021/DECREE HOLDER,JUDGMENT DEBTOR, AND OTHERS NOT PARTIES TO E.P.NO.661/2017/PLAINTIFF,DEFENDANT AND NOT PARTIES IN O.S.NO.95/2012: ``` ``` 1MOHANAKRISHNAN AGED 50 YEARS ,S/O LATE RAMACHANDRAN NAIR, AGED 50 YEARS, 'AISWARYA' KAVILKKOTTA PARAMBA, VALAYANAD AMSOM & DESOM, KOZHIKODE TALUK, PIN - 673004 2HAREENDRANATH AGED 40 YEARS S/O. LATE RAGHAVAN NAIR, "KOLATHAYIL HOUSE", PALLIPPURAM, OLAVANNA, KOZHIKODE, PIN - 673019 3VISALAKSHI AMMA A.P AGED 74 YEARS W/O. LATE RAGHAVAN NAIR, "KOLATHAYIL HOUSE", PALLIPPURAM, OLAVANNA, KOZHIKODE, PIN - 673019 ``` ## **`EX.SA NO. 9 OF 2023 2`** ``` 4GEETHALAKSHMI P, AGED 52 YEARS D/O. LATE RAGHAVAN NAIR, "KOLATHAYIL HOUSE", PALLIPPURAM, OLAVANNA, KOZHIKODE, PIN - 673019 5GAYATHRIDEVI.P, AGED 46 YEARS D/O. LATE RAGHAVAN NAIR, "KOLATHAYIL HOUSE", PALLIPPURAM, OLAVANNA, KOZHIKODE, PIN - 673019 6SUDHAKARAN P AGED 42 YEARS S/O. LATE RAGHAVAN NAIR, "KOLATHAYIL HOUSE", PALLIPPURAM, OLAVANNA, KOZHIKODE, PIN - 673019 7SMITHA P. AGED 36 YEARS D/O. LATE RAGHAVAN NAIR, "KOLATHAYIL HOUSE", PALLIPPURAM, OLAVANNA, KOZHIKODE, PIN - 673019 8VIJAYALAKSHMI P, AGED 52 YEARS W/O. LATE VASUDEVAN, "SREEVALSAM", VALLIKUNNU, PANTHEERANKAVU (PO), KOZHIKODE, PIN - 673019 9VISHNU P, AGED 25 YEARS S/O. LATE VASUDEVAN, "SREEVALSAM", VALLIKUNNU, PANTHEERANKAVU (PO), KOZHIKODE, PIN - 673019 THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` EX.SA NO. 9 OF 2023 3 ``` ## **JUDGMENT** Dated this the 4[th] day of October, 2023 This Execution Second Appeal has been filed under Section 100 r/w Order XXI Rule 58(4) and Rule 103 of the Code of Civil Procedure (for short, 'the C.P.C.' hereinafter) by the 4[th] petitioner in E.A.No.70/2021 in E.P.No.661/2017 in O.S.No.95/2012. 2. Respondents herein are the other petitioners, decree holder and judgment debtor. 3. Heard the learned counsel for the appellant on admission. 4. The appellant assails order in E.A.No.70/2021 on the files of the Subordinate Judge, Kozhikode, dated 2.9.2021 and judgment passed by the learned Additional District Judge, Kozhikode in A.S.No.59/2021, dated 24.7.2023, arose therefrom. 5. On perusal of the order and judgment under challenge, passed in a petition filed under Order XXI Rule 97 to 100 of the C.P.C., the case of the petitioners, who are ## **`EX.SA NO. 9 OF 2023 4`** the legal heirs of late Raghavan Nair was that, after the death of Raghavan Nair, the entire properties, where statutory charge under Section 55(6)(b) of the Transfer of Property Act, 1882 (for short, ‘the TP Act’ hereinafter) was alleged to be created, devolved upon the petitioners. Further case is that, 1/7 share of the judgment debtor was transferred in the name of the 4[th] petitioner. Therefore, the decree holder could not realise the amount covered by the ex parte decree, dated 14.1.2016, whereby, he obtained decree to realise the amount, in consequence of an agreement for sale, in between the decree holder and judgment debtor. 6. The trial court relied on a decision of this Court in **Sebastian** v. **Bipin** reported in **[2004 (1) KLT 159]** and found that _‘it is plain from the provision of S.55(6)(b) that, in the absence of a contract to the contrary, the buyer will have a charge on the seller's interest in the property which is the subject matter of the sale agreement insofar as the purchase money and interest on such amount are concerned, unless the buyer has improperly declined to_ ``` EX.SA NO. 9 OF 2023 5 ``` _accept delivery. The charge is available against the seller and all persons claiming under him. The charge in favour of the buyer is the converse of the seller's charge under S.55(4)(b). The buyer's charge under this Section is a statutory charge and differs from a contractual charge which a buyer may be entitled to claim under a separate contract. The charge on the property under S.55(6)(b) is enforceable not only against the seller but against all persons claiming under him.’_ 7. Accordingly, the finding of the trial court was that, since there is a statutory charge for getting back the amount of advance sale consideration, the same is enforceable against the property. Similar is the view taken by the appellate court also. The appellate court also relied on two decisions of this Court in **Binoy Kurian** v. **Varkey Joseph** reported in **[2022(3) KLJ 7]** , where this Court held as under: _When the decree is an outcome of a claim for advance purchase money paid for the property proposed to be sold on the basis of a sale agreement entered into between the decree-holder_ ## **`EX.SA NO. 9 OF 2023 6`** _and the judgment debtor, there is a statutory charge u/s.55(6)(b) of the Transfer of Property Act even if no charge is created in the property as per the decree (See para 7 of the Judgment). Hence it is evident that respondent No.1 has a statutory charge over the plaint schedule property/EP schedule property U/s.55(6)(b) of the Transfer of Property Act for the realisation of the decree debt._ Further decision in **Annie M. Mathew** v. **M.K.Thomas (deceased) and Others** reported in **[2019 (3) KLJ 378]** , also was relied on by the appellate court, where this Court held as under: _The Section deals with a suit or proceeding in which any right to immovable property is directly and specifically in question. The terms "any right to immovable property", will definitely include the right to proceed against an immovable property. When a suit is filed claiming a charge over an immovable property, necessarily, the question arises as to whether the plaintiff is entitled to a charge over the said property and as to whether the plaintiff is entitled to proceed against the same in execution of the decree. Therefore, whether the immovable property is liable to be proceeded against is in issue in the suit. That being so, Section_ ``` EX.SA NO. 9 OF 2023 7 ``` _52 of the Transfer of Property Act squarely applies in a suit where charge is claimed over immovable property. Any dealing with the property pending the suit will be hit by lis pendens unless the suit is proved to be collusive._ 8. According to the learned counsel for the appellant, it is the duty of the decree holder to prove the entitlement of charge under Section 55(6)(b) of the TP Act. 9. In the case at hand, at the time of execution of the sale agreement to sell 1/7 share of the judgment debtor in favour of the decree holder, which led to passing the ex parte decree for realisation of the advance amount paid, the respondent No.2 (the judgment debtor) is a coowner, being one among the legal heirs of late Raghavan Nair and he offered to sell his right in favour of the decree holder. If so, by operation of Section Section 55(6)(b) of the TP Act, a statutory charge is created and section provides as under: ## _**“55. Rights and liabilities of buyer and seller**_ _In the absence of a contract to the contrary, the buyer and the seller of immovable property_ ``` EX.SA NO. 9 OF 2023 8 ``` _respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or such of them as are applicable to the property sold:_ ## _**- 55(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.”_ 10. Thus, it appears that the attempt of filing of this petition is only to protract realisation of money, in fact, entitled on the basis of statutory charge in relation to 1/7th right of the judgment debtor in the property. It is true that 1/7th right of the judgment debtor was transferred by the ## **`EX.SA NO. 9 OF 2023 9`** judgment debtor in favour of the appellant herein by executing a gift during pendency of the suit, that is, after execution of the sale agreement. But, the said gift will not exclude the statutory charge which runs with the property to realise the advance sale consideration paid/due before, in any manner. In such view of the matter, the application filed under Order XXI Rule 97 to 100 of the C.P.C., at the instance of the appellant herein along with other petitioners in the E.A., could not sustain. 11. In this case, the learned counsel for the appellant failed to raise any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus: ## _**“2. Power of Court to direct that the appeal be heard on the question formulated by**_ _**it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be_ ``` EX.SA NO. 9 OF 2023 10 ``` _open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 12. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this subsection shall be deemed to take away or abridge the power ``` EX.SA NO. 9 OF 2023 11 ``` of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 13. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]** , the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law. In_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** , the Apex Court held that:_ _"After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be_ ``` EX.SA NO. 9 OF 2023 12 ``` _heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence."_ _"It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under S.100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a_ ``` EX.SA NO. 9 OF 2023 13 ``` _substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact."_ _"If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial_ ``` EX.SA NO. 9 OF 2023 14 ``` _question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal."_ _When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose, AIR 2014 SC 152. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of S. 100 of the CPC._ 14. In a latest decision of the Apex Court in **Government of Kerala v. Joseph** , reported in **[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]** , it was held as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well –_ ``` EX.SA NO. 9 OF 2023 15 ``` _established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court. We may only refer to_ _**Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]** (three – Judge Bench) wherein this Court observed as follows:_ _12. The phrase “substantial question of law”, as occurring in the amended S.100 is not defined in the Code. The word substantial, as qualifying “question of law”, means – of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general_ ``` EX.SA NO. 9 OF 2023 16 ``` _importance._ 15. The legal position is no more _res-integra_ on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read ``` EX.SA NO. 9 OF 2023 17 ``` with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 16. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. Sd/- **A. BADHARUDEEN JUDGE** Bb