Point of Law : Review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for a review.

ORDER :

P.G. Ajithkumar, J.

The appeal was dismissed as per the judgment dated 31.05.2022. The appellant filed this Review Petition under Section 114 and Rule 1 of Order XLVII of the Code of Civil Procedure, 1908. He seeks to review the judgment and hear the appeal afresh.

2. There was a delay of 28 days in filing the Review Petition. As per the order dated 06.12.2022 in C.M.Appl.No.1 of 2022 delay was condoned.

3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.

4. The petitioner seeks a review of judgement dated 31.05.2022 by contending that there occurred errors essentially on three aspects, namely,-

(i) The finding that there was statutory charge created as per the provisions of Section 55(6)(b) of the Transfer of Property Act, 1882 (T.P.Act) on the property in question was incorrect inasmuch as the said finding militates against the last paragraph of Section 54 of the T.P.Act, which says that a contract for sale by itself does not create any interest or charge on such property;

(ii) The award dated 29.01.2010, in execution of which the property was sold in auction, was not registered. But that aspect was lost sight of the Court; and

(iii) The finding that the sale in favour of the petitioner comes within the mischief of Section 53 of the T.P.Act is wrong and illegal inasmuch as the procedural requirements of Section 53 were not satisfied.

5. The learned counsel appearing for the petitioner would submit that the last paragraph of Section 54 of the T.P.Act categorically says that a contract for sale does not create charge in a property, and hence Section 55(6)(b) cannot be interpreted to mean that as soon as a contract for sale was entered into, the charge is created. In the view of the learned counsel, Section 55(6)(b) of the T.P.Act envisages a situation where the purchaser after executing a sale deed does not get possession of the property, and if, in such a case, the purchaser did not decline to accept delivery of the property in an improper way, he shall have a charge over the property as against the seller and all persons claiming under him and not a situation prior to execution of the sale deed.

6. Clause (b) of Section 55(6) of the T.P.Act reads,-

"(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."

7. Section 55(6) of T.P.Act deals with rights of a buyer. On the first flush it may appear that the rights referred to therein are of a buyer in a completed transaction of sale. But a careful reading of clause (b) of Section 55(6) would show otherwise. Once sale is complete there is no concept of earnest money, specific performance of the contract or rescission of the contract. When clause (b) of Section 55(6) contemplates remedy concerning those elements, it is incorrect to say that this clause has application only in cases where sale has already taken place. Charge as per clause (b) of Section 55(6) is created to the extent of the seller’s interest in the property. In the post sale scenario, the seller ordinarily can have no interest in the property, and if the contention advanced by the learned counsel for the petitioner is accepted, this provision can deal with a contingency of nondelivery of property after execution of a sale deed alone. The remedy of the buyer in such a situation is not specific performance, but to sue for getting delivery of possession. Section 22 of the Specific Relief Act, 1963, which enables the court to order specific performance of a