Allowed

Mr. Sajeevan, v. Balu A.T

Kerala HC26 Jul 2022Ex.FA/11/2022

Case brief

AI extract

What is this about?

This is an execution first appeal against the dismissal of a claim petition in an execution proceeding. The High Court found the trial and execution courts failed to properly consider the claimant's prior purchase of the attached property and applicability of Section 55(6)(b) TP Act regarding charges. The appeal was allowed and the matter remanded for proper disposal.

What did the court decide?

The appeal is allowed and the matter is remanded back to the execution court for proper disposal under Order XXI Rule 58 CPC.

Mr. Sajeevan, Vs Balu A.T — Execution and Attachment | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

TUESDAY, THE 26TH DAY OF JULY 2022 / 4TH SRAVANA, 1944

¶5

EX.FA NO. 11 OF 2022

¶6

AGAINST THE ORDER IN E.A.NO.1161/17 AND E.A.NO. 59/21 IN EP
617/2015 IN OS.NO.1301/2012 OF ADDITIONAL SUB COURT-II, THRISSUR
DATED 07.02.2022

¶7

APPELLANT/CLAIM PETITIONER:

¶8

MR. SAJEEVAN,
AGED 42 YEARS
S/O VELAYUDHAN,
VALIYAPARAMBIL HOUSE,
OLLUR VILLAGE ,
VALARKKAVU DESOM,
KURIACHIRA P.O.,
THRISSUR - 680006
BY ADVS.
S.SREEKUMAR (SR.)
P.PRIJITH
THOMAS P.KURUVILLA
R.GITHESH
AJAY BEN JOSE
MANJUNATH MENON
SACHIN JACOB AMBAT
ANNA LINDA V.J
HARIKRISHNAN S.
P.MARTIN JOSE

¶9

RESPONDENTS/RESPONDENTS:

¶10

1BALU A.T,
AGED 56 YEARS
S/O THULASIRAM, HOUSE NO.25/915,
PLAKKATT LANE, NAIKKANAL DESOM,
THRISSUR TALUK & VILLAGE,
THRISSUR DISTRICT, PIN - 680001

¶11

2VIJU @ BIJU ,
AGED 45 YEARS
S/O MACHINGAL VEETTIL OUSEPH,
OLLUKKARA VILLAGE,

¶12

¶13

EX.FA NO. 11 OF 2022

¶14

MULLAKKARA DESOM,
MANNUTHY P.O,
THRISSUR TALUK & DISTRICT, PIN - 680651
BY ADVS.
K.S.BABU
N.SUDHA
BABU SHANKAR
MINU SIBY ROY
TEZNY A.K.

¶15

THIS EXECUTION FIRST APPEAL HAVING COME UP FOR
HEARING ON 26.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

¶16

¶17

EX.FA NO. 11 OF 2022

¶18

JUDGMENT

¶19

 Against the dismissal of claim petition

¶20

under Order XXI Rule 58 CPC at the execution

¶21

stage, the claimant came up in appeal.

¶22

2. It is a suit for recovery of advance

¶23

amount. The property was purchased by the claim
petitioner prior to the institution of the suit.

¶24

Since the property is not the subject matter of

¶25

the suit, there cannot be any application of
Section 52 of the Transfer of Property Act. The
claimant is not a party to the suit and would
not stand bound by the decree for return of
advance amount.

¶26

3. It was contended by the claimant that

¶27

the suit is a collusive one and a collusive
decree was obtained wherein the defendant

¶28

remained ex parte.

¶29

¶30

EX.FA NO. 11 OF 2022

¶31

4. A contract for sale, by itself, will not

¶32

create a charge over the property, unless the

¶33

same is registered for the purpose of creating a

¶34

charge. Section 55(6)(b) of the Transfer of

¶35

Property Act would normally come into play only
after the completion of the sale and as such
there cannot be a charge over the property
merely because an agreement for sale was entered
into by the parties.

¶36

5. The fact that the property was purchased

¶37

by the claim petitioner even prior to the

¶38

attachment over the property was not properly
considered by the trial court. The legal effect
of Section 55(6)(b) of the Transfer of Property

¶39

Act was also not properly considered by the
execution court. Hence, the order of dismissal
of claim petition cannot be sustained. The
matter is remanded back to the execution court

¶40

for proper disposal in accordance with the

¶41

EX.FA NO. 11 OF 2022

¶42

mandate under Rule 58 of Order XXI CPC. The

¶43

parties shall appear before the execution court
on 25.08.2022.

¶44

The appeal is allowed accordingly. No costs.

¶45

 Sd/-

¶46

P.SOMARAJAN

¶47

JUDGE

¶48

SPV

Mr. Sajeevan, v. Balu A.T

Case brief

What is this about?

What did the court decide?

Mr. Sajeevan, v. Balu A.T

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Bharathi Amma Karthyani Amma Vs Govinda Pillai Jayachandran Nair

State of Kerala Vs George Baby (Died)

K.Sankaranarayanan Vs Krishnankutty

Malabar Cements Ltd. Vs P.S.George

Sudhamoni Vs Balachandran

R.Krishna Veni Vs Subramaniam (Died)