KESAVAN Vs. D. CHANDRAN

JUDGEMENT

(1.) The claim petitioner in an application under Order XXI Rule 58 of the Code of Civil Procedure, 1908, has come up in the present appeal, aggrieved by the refusal on the part of the Additional Sub Court-I, Thiruvananthapuram, to entertain the claim petition, E.A. No.268 of 2018 in E.P. No.67 of 2017 in O.S No.576 of 2013, which was affirmed by the District Court, Thiruvananthapuram, in A.S. No.63 of 2023.

(2.) O.S. No.576 of 2013 is a suit for recovery of money. The 1st respondent in the claim petition is the decree holder, and the 2nd respondent is the judgment debtor in E.P. No.67 of 2017 in O.S. No.576 of 2013. The schedule property belonged to the 2nd respondent. On 18/5/2013, the claim petitioner entered into an agreement of sale with the 2nd respondent, for the sale of the aforesaid property and consequently paid an amount of Rs.51,88,000.00 (Rupees Fifty One Lakh Eighty Eight thousand only) towards sale consideration. Since the 2nd respondent did not perform her obligations under the sale agreement, the petitioner filed O.S. No.695 of 2013 before the Additional Sub Court-I, Thiruvananthapuram, for specific performance. The suit was filed on 22/11/2013 and was decreed on 31/3/2015. Thereafter, the petitioner filed E.P. No.51 of 2017 in O.S. No.695 of 2013 for getting the sale deed executed after depositing the balance sale consideration on 14/2/2017. On 22/2/2018, the claim petitioner came to know that the 1st respondent had filed a suit against the 2nd respondent as O.S. No.576 of 2013 before the Additional Sub Court-I, Thiruvananthapuram, for the realisation of a sum of Rs.15,00,000.00, in which an ex parte decree was passed, and an Execution Petition was filed. The first respondent had filed I.A. No.2075 of 2013 for an order of attachment before judgment with respect to the scheduled property, and a conditional order of attachment was passed on 20/5/2013. The said attachment was confirmed on 20/6/2013. The suit was decreed on 19/2/2016. The 1st respondent has also filed E.P. No.67 of 2017 in O.S. No.576 of 2013, and the same is pending. It is contended that since the order of attachment before judgment was passed, when an earlier agreement of sale in favour of the claim petitioner was subsisting, no right is accrued to the attaching creditor. Thus, it is pointed out that the order of attachment before the judgment cannot prevail over the agreement of sale in favour of the petitioner on 18/5/2013, which resulted in the decree of specific performance. The 1st respondent in the claim petition filed an objection stating that the claim petition is not maintainable and that the conditional order of attachment was passed on 20/5/2013, whereas the suit for specific performance was filed only on 25/11/2013. It is also stated that the decree obtained by the claim petitioner in O.S. No.695 of 2013 is an ex parte decree, and the claim petitioner has no cause of action and is not entitled to any relief claimed. On behalf of the claim petitioner, Exts.A1 to A18 documents were produced. The Executing Court relied on the decision of the Division Bench of this Court in Kumaran vs. Kumaran [2011 (1) KLT 252] wherein it was held that the mere existence of a contract of sale or even a decree for specific performance on the basis of an agreement does not, in any manner, affect the title of the vendor who has entered into the contract for sale. In the light of the above decision, the claim petition was dismissed, and the order of attachment was confirmed. Aggrieved, the claim petitioner preferred A.S. No.63 of 2023 before the District Court, Thiruvananthapuram, and the first appellate court concurred with the findings of the trial court, dismissed the appeal. Hence the present appeal.

(3.) On 4/4/2024, this Court framed the following substantial questions of law for consideration.