A second appeal under Section 100 of the C.P.C. requires a substantial question of law, which was not present in this case, coupled with the enforceability of statutory charges under the Transfer of Property Act.

JUDGMENT

Dated this the 4th 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 4th 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 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 4th 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 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 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 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