JUDGMENT

Ajithkumar, J.

The appellant filed E.A.No.945 of 2012 invoking the provisions of Order XXI, Rule 58 of the Code of Civil Procedure, 1908, in E.A.No.840 of 2011 in E.P.No.205 of 2010 in O.S.No.289 of 2008 before the Principal Sub Court, Irinjalakuda (Execution Court). That petition was dismissed by the Execution Court as per the order dated 23.08.2013. Aggrieved by the said order, this appeal was filed by the appellant under Section 96 and Order XLI, Rule 1 of the Code.

2. On 11.03.2014, when the matter came up for admission, notice was issued to the respondents and delivery of the petition schedule property was stayed.

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

4. The 1st respondent filed O.S.No.289 of 2008 on the basis of an agreement for sale entered into on 12.11.2007 between the 1st respondent on the one part and respondents 2 and 3 on the other. That suit was settled in the Adalath and an award was passed on 29.01.2010. The award allowed the 1st respondent to realise an amount of Rs.3,20,000/- along with interest from respondents 2 and 3. A charge was created upon the property, which was the subject matter of the agreement dated 12.11.2007. E.P.No.205 of 2010 was filed by the 1st respondent and eventually, 10 cents of property comprised in Sy.No.1238/2 of Alathur Village was attached and brought on sale. The appellant thereafter filed E.A.No.945 of 2012 claiming that he is the absolute owner in possession of the said 10 cents of property and therefore the same was not liable for attachment or sale in execution of the award in O.S.No.289 of 2008. In proof of the said claim, the appellant got himself examined as PW1 and produced Ext.A1, which is the certified copy of the sale deed No.2336 of 2008 of Annamanada Sub Registrar's Office, by virtue of which, the appellant had purchased the said 10 cents of property, which is scheduled to the claim petition.

5. The appellant contended that the compromise decree is a collusive one and since Ext.A1 sale deed was executed prior to the filing of O.S.No.289 of 2008 and the 1st respondent did not venture to challenge the order allowing a similar claim raised by Smt.Thressiamma in respect of 67 cents of property, which together with the petition schedule 10 cents formed the subject matter of agreement dated 12.11.2007, the Court below should have allowed the appellant’s claim. The learned counsel appearing for the appellant would also submit that the respondents did not adduce any evidence; not even regarding the agreement based on which the suit was filed and as such the charge created upon the petition schedule property cannot be the saved.

6. The learned counsel appearing for the 1st respondent, on the other hand, would submit that the charge was created by virtue of the provisions of Section 55(6)(b) of the Transfer of Property Act, 1882 and as such the sale taken by the appellant on the previous day of filing the suit would not invest a valid title with the appellant. The learned counsel further submits that the very nature of Ext.A1 would establish that it is a product of fraud. When the price agreed to in the agreement dated 12.11.2007 is Rs.20,000/- per cent, the total sale consideration for the sale of 10 cents as per Ext.A1 is just Rs.40,000/-. There was no agreement for sale as is evident from Ext.A1. The 2nd respondent executed Ext.A1 on 13.05.2008. The 3rd respondent was a witness to it. Suppressing those facts, they entered into a compromise with the 1st on 29.01.2010 based on which the Adalat passed the award. The suit was filed on 14.05.2008 in the vacation court. The definite case of the appellant is that he knew regarding the attachment and the pendency of the execution proceedings from Smt.Thressiamma. Though the award was passed on 29.01.2010 and the attachment was effected in 2011, after allowing the claim petition filed by Smt.Thressiamma only the petitioner filed the claim petition, E.A.No.9