MAMMAD KOYA Vs. ISMAYIL

JUDGEMENT

(1.) The judgment debtor in O. S. No. 231 of 1974 on the file of the Subordinate Judge, Kozhikode is the appellant in this appeal. That suit was one for recovery from the defendant of an amount of Rs. 30,000/-that had been paid by the plaintiff to the defendant by way of advance for the purchase of an item of immovable property covered by an agreement for sale. The suit was decreed on 26-2-1976. During the pendency of the suit the plaintiff had obtained an order of attachment before judgment in respect of the property belonging to the defendant which formed the subject matter of the agreement for sale. When the plaintiff decree holder sought to bring the said property to sale in execution of the decree obtained by him the judgment debtor raised objections contending that he is a 'debtor' as defined in Kerala Act 30 of 1975 and is therefore entitled to the benefit of the said enactment and that the petition for execution was not maintainable in view of the provisions of O.34 R.14, CPC. in as much as the decree holder had a statutory charge over the property sought to be sold by virtue of S.55 of the Transfer of Property Act. The lower court by its order how appealed against overruled both the aforesaid contentions put forward by the judgment debtor. Hence this appeal by the judgment debtor.

(2.) Act 30 of 1975 had come into force during the pendency of the suit but the defendant raised no plea in the suit claiming the benefit of any of the provisions of the said Act. Since the decree was passed only on 26-2-1976 subsequent to the commencement of Act 30 of 1975, the judgment debtor was not entitled to put forward a plea at the stage of execution that he is entitled to the benefits of Act 30 of 1975 and the decree should not be executed in accordance with its tenor. The lower court acted rightly in rejecting the said contention put forward by the judgment debtor.

(3.) The next point raised on behalf of the appellant is that since a statutory charge is provided Under S.55 of the Transfer of Property Act in respect of the amount of advance sought to be recovered under the decree the decree holder is not entitled to attach the property in pursuance of the money decree passed in his favour and bring the said property to sale in view of the prohibitory provision contained in O.34 R.14, C. P. C. It is argued by the appellant's counsel that the only course legally open to the person seeking in to recover back the amount of advance paid under an agreement of sale of an immovable property is to institute a suit against the transferor who committed a breach of the agreement praying for a sale of the property in enforcement of the charge put under S.55 of the Transfer of Property Act.