IMPORTANT POINT
A subsequent purchaser cannot claim absolute title over property if a prior sale agreement exists, as statutory charges apply for unpaid purchase money.

JUDGMENT :

This regular first appeal has been filed under Section 96 read with Order XLI Rule 1 of the Civil Procedure Code (hereinafter referred to as ‘CPC’ for short) by the claimant in EA No.333/2012 in E.P.No.176/2011 in O.S.No.485/2007 on the files of the Principal Sub Judge, North Paravur.

2. I shall refer the parties in this regular first appeal as ‘claim petitioner’, ‘plaintiff’ and ‘defendant’ hereafter for easy reference.

3. Heard the learned counsel for the claim petitioner and the learned counsel appearing for the plaintiff. No representation for the defendants.

4. The miniscule certitude in this matter is as under:

The claim petitioner had filed petition under Order XXI and Rule 58 of CPC, claiming absolute right and title over the decree schedule property on the strength of a sale deed executed by the defendant in his favour, as on 02.11.2007, as per sale deed No.3073/07 of Kuzhuppilly SRO. According to the claim petitioner, since he obtained title over the entire property as on 02.11.2007 and the decree in the Suit was obtained between the plaintiff and defendant in collusion and by committing fraud on both, the property is not liable to be proceeded to realise the decree debt.

5. The plaintiff opposed the claim raised by the claim petitioner contending that earlier there was an agreement, executed by the defendant in favour of the plaintiff as on 13.03.2007, to sell the property on receipt of advance sale consideration of Rs.2,00,000/- (Rupees two lakh only). But the sale agreement could not be executed and thereby the plaintiff filed the present suit and to get back the money and decree was passed accordingly, negativing the contention raised by the defendant.

6. The execution court considered the claim based on the evidence recorded as that of PW1 and Exts.A1 to A3 on the side of the claim petitioner and RW1 and Ext.B1 on the side of plaintiff. Finally, the execution court dismissed the claim petition after observing paragraph No.11 of the impugned verdict, which reads as under:

“11. The learned counsel for the respondent further rightly pointed out that as per the agreement for sale executed in between the decree holder and the judgment debtor, the total value of the property is 8 ½ lakhs. Whereas as per ext.A1 the judgment debtor alleged to have been sold the property to the petitioner only for a sum of Rs.2 ½ lakhs. So, a cumulative consideration of the evidence adduced by both sides, I am of the view that there are sufficient reasons and circumstances to hold that the petitioner is not a bona fide purchaser and Ext.A1 document is created only with a malafide intention to defeat the creditor (1st respondent) decree holder herein. Therefore, the petitioner is not entitled to get any relief as prayed for. Resultantly, the petition is liable to be dismissed. I do so.”

7. At the time of hearing, the learned counsel for the claim petitioner reiterated the contentions raised before the execution court and submitted that as on 02.11.2007, when the claim petitioner purchased the property, he had verified all liabilities subsisting in the scheduled property, but no encumbrance found and accordingly, the property was purchased for valid consideration. According to the learned counsel for the claim petitioner, the plaintiff did not institute a suit for specific performance of contract instead filed a suit to get back the money and the suit was decreed as the outcome of collusion between the plaintiff and the defendant. Therefore, the decree schedule property/claim petition schedule property is not liable to be proceeded for getting back the advance money, if any, covered by the decree.

8. Opposing this contention, the learned counsel for the plaintiff would submit that as on 13.03.2007, the defendant executed an agreement in favour of the plaintiff to sell the property for a total consideration of Rs.8,50,000/- (Rupees eight lakh and fifty thousand only) and the plaintiff paid Rs.2,00,000/- (Rupees two lakh thousand only) as