KUMARAN Vs. KUMARAN

JUDGEMENT

(1.) These appeals arise from a common order dismissing two claim petitions filed invoking O.21 R.58 of CPC. They were filed in relation to execution proceedings in two different suits. The judgment debtor in both the suits is one Mr.Balakrishnan. In OS No. 297/03, a suit for specific performance of a contract for sale, he suffered a decree for return of advance. In OS No.205/01, he suffered a decree for recovery of money based on a commercial transaction. The decrees were put in execution and the judgment debtor's property involved in the suit for specific performance of the contract for sale, OS No. 297/03, was brought to sale. The appellant filed claim petitions in both the proceedings on the footing that Balakrishnan had executed a contract for sale in his favour, had obtained Rs.2,50,000/- as part of sale consideration and had put the appellant in possession of the property in part performance of that, on 14/09/1998. According to him, on 19/08/2001, a further amount was also received by Balakrishnan and the period for performance of that agreement was extended till 14/01/2002. He pleaded that on account of Balakrishnan's failure to perform his part of that contract for sale, he instituted OS No. 146/03 and obtained Ext. A2 decree, of which, Ext. A1 is the judgment. Following Exts. A1 and A2, Ext. A3 is the document executed with the intervention of Court, in favour of the appellant, on 26/03/2005. This is the foundation for the claim petitions filed by the appellant in both the execution proceedings. The Court below, for different reasons, dismissed the claim petitions. Hence these execution first appeals.

(2.) The learned counsel for the appellant argued that the Court below ought to have adjudicated the question of title as pleaded by the appellant rather than leave the matter by holding that the applications are not sustainable. We are of the view that the question of title as projected by the appellant can be examined by this Court itself, having regard to the materials on record.

(3.) The contract for sale, which was the subject matter of OS No.297/03, is dated 01/10/2000 and the decree in that suit is dated 30/11/2005. In that suit for specific performance of the contract for sale, the trial Court granted the buyer a charge decree for the advance paid. That was essentially one, recognising the charge that the buyer had in terms of S.55(6)(b) of the Transfer of Property Act. That is a charge that the buyer had from the date of the contract for sale, which was the subject matter of that suit. O.21 R.58 of CPC applies only to cases of attachment. There cannot be a claim petition in relation to a charge. Be that as it may, we will decide the question of title also, on merits, with reference to the plea of title raised by the appellant.