Name of buyer of property could be notified in sale proclamation.

This Revision Petition arises out of E.A. No. 361 of 1964 in E.P. No. 153 of 1963 in O.S. No. 30 of 1963 on the file of the Sub-Court, Madurai. The suit, O.S. No. 30 of 1963, was filed by the plaintiff Venkataraman against M.K. Sundararamier, his daughter-in-law and grandson for a certain sum of money. He exonerated the daughter-in-law and grandson and obtained a decree for Rs. 9,000 against Sundararamier. To execute the decree, he filed E.P. No. 153 of 1963 and attached a house belonging to the joint family consisting of Sundararamier, his daughter-in-law and his grandson. The house is said to be worth about Rs. 29,000. But in respect of that house, Sundararamier had executed an agreement Exhibit A-1, dated 6th September, 1962 for Rs. 29,000 in favour of one C. M. V. Krishnamachary. Under the agreement a sum of Rs. 9,000 was advanced. But the sale was not completed. It is the case of C.M.V. Krishnamachary that the default was with M.K. Sundararamier. He has issued a notice Exhibit A-2 dated 21st February, 1963 to M.K. Sundararamier but to no purpose. C. M. V. Krishnamachary alleged that not merely did Sundararamier fail to complete the sale deed but he set up his grandson to file a partition suit, O.S. No. 31 of 1963, in the Sub-Court and claim a half share and that further he set up Venkataraman to file O.S. No. 30 of 1963, and bring the properties to sale. On such allegations C.M.V. Krishnamachary filed E.A. No. 361 of 1964 under Order 21, rule 58, Civil Procedure Code claiming a charge over a sum of Rs. 9,000 under section 55 (6) of the Transfer of Property Act and requested the Executing Court to notify it in the proclamation of sale. The learned Subordinate Judge accepted the prayer of C.M.V. Krishnamachary and notified the charge to the extent of Rs. 9,000. This Revision Petition has been filed by M.K. Sundararamier against that order dated 10th December, 1964.

Section 55 (6) (b) of the Transfer of Property Act states that the buyer is entitled

“ 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 the rescission.”

Sri S. Kothandarama Nayanar, learned Counsel for the petitioner, urges that the above provision cannot be availed of by the buyer before the sale deed is executed and can be availed of by him only after the sale deed is executed. I am however unable to accept the contention, because if the sale deed is executed, the tide would pass to the buyer and there is no point in giving a charge over the purchase money on the property which has become that of the buyer. The provision can have meaning only in a case where the title has not yet passed to the buyer in respect of the purchase money or any portion thereof paid by him. That the provisions of section 55 will apply to the case of executory contract, that is, where the sale deed has not been executed, is clear from the decisions quoted by the learned Subordinate Judge and the observations of the learned Judges therein, namely, Adhikesavalu Naidu v. Gurunatha Chettiar1, Kathamuthu Pillai v. Subramaniam Chettiar2, and Krishnasami Rao v. Srinivasa Desikan3. Hence the learned Subordinate Judge had jurisdiction to declare the charge.

In a Revision Petition it is really not necessary to consider the question whether it was proper to declare the charge. But on the facts of this case, on the materials available at this stage, it seems to me that the declaration of charge was proper. I have already pointed out that C.M.V. Krishnamachari sent notice Exhibit A-2

on 21st February, 1