IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 WP(C).No. 5399 of 2008(P) ------------------------- OS.671/1998 of I ADDL.M.C.,NEYYATTINKARA .................... PETITIONER: 2ND DEFENDANT/2ND J.DS APPELLANT -------------------- C.RAGHAVAN, AGED 58, S/O. GOPALAN, RESIDING AT KUZHIVILA LALITHA BHAVAN, MAVUVILA KARINGAL DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENTS: PLAINTIFF, DECREE HOLDER, 1ST DEFT./1ST J.D. RES. ------------------------ 1. SAJI KUMAR, AGED ABOUT 41, S/O. GOPINATHAN NAIR, POOMUKHATHU VEEDU, OORUTTAMBALAM DESOM, MARANALLOOR VILLAGE. 2. CHANDRASEKHARAN NAIR, AGED 53, S/O. SIVADASAN, RESIDING AT KANCHIYOORKONAM, KUNNUMPURATHU VEEDU, ETTURUTHI WARD, KULATHUMMAL VILLAGE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- W.P.(C) No.5399 OF 2008 -------------------------- Dated this the 14th day of February, 2008 J U D G M E N T ~~~~~~~~~~~ This writ petition is preferred against the order of the Subordinate Judge, Neyyattinkara in C.M.A.No.12/2005 whereby the Court has dismissed the C.M.A. The short point that arises for determination in the writ petition is whether the charge created in O.S.No.671/1998 will give a right to the decree holder in the said suit to realise the amount by sale of the property in the light of the earlier decision rendered by the court in O.S.No.643/1998. O.S.No.643/1998 was a suit filed by the present 2nd defendant against the 1st defendant for realisation of amount. I am told that there was an attachment before judgment and the suit was decreed “allowing the plaintiff to realise a sum of Rs. 51,256/- (Rupees Fifty one thousand two hundred and fifty six only) with future interest at the rate of 6% per annum on the principal amount of Rs.50,000/- (Rupees Fifty thousand only) from the date of suit till realisation and costs from the defendant and his assets”. W.P.(C) No.5399/2008 2 2. The decree does not stipulate any charge over the property and therefore it may not be correct to state that it was a charged decree. But it was a decree prior to which an attachment before judgment was done and in execution of the decree the property was sold and it was purchased by the 2nd defendant who is the plaintiff in O.S.No.643/98 as an auction purchaser decree holder. 3. The second case is a fight between the present plaintiff in O.S.No.671/98 and the 1st defendant. It was a case where the suit was one filed for return of the advance money with a prayer to have a charge on the property agreed to be sold. The 2nd defendant herein is the plaintiff in the previous suit who had obtained a decree and it is specifically mentioned in the plaint that since he is claiming a charge over the property he has been impleaded as a defendant. The 1st defendant did not contest the case. The 2nd defendant seriously contested the case and an issue was raised whether a charge can be created on the plaint schedule property. The Court after considering the materials available before it came to the conclusion that a charge can be created over 10 cents of property which is now in W.P.(C) No.5399/2008 3 possession of the 1st defendant for realisation of the decree amount in the suit. Therefore, by virtue of the decree in the suit the charge over the property which in the possession of the 2nd defendant has been created by the court. Admittedly, no appeal has been preferred against the said finding and it is that decree now it is put into execution wherein so many contentions are raised regarding the entitlement of the plaintiff to sell that charged property. Situation may be different when the person in possession is not a party. Even otherwise it has to be understood that in a suit for return of the advanced amount the court is competent to create a charge under Section 55(6) of the Transfer of the Property Act. So by permitting to create a charge by the judgment it has to be implied that the court has exercised its power under Section 55(6) of Transfer of Property Act to give the charge. The philosophy behind creating such a charge is that for the purchase of a particular item of property amount has been advanced by the person and subsequently when the contract fails certainly that person who has paid the amount and does not get the property should have some security in getting back this amount at least and that is why the legislature has W.P.(C) No.5399/2008 4 contemplated to create a charge under Section 55(6) of the Transfer of the Property Act. Now I may refer to the decisions referred to by the learned counsel for the writ petitioner. He had relied on the decision of the Apex Court in S. Noordeen v. V.S.T.Venkita Reddiar reported in 1996(1) KLT 761. It was a case of compromise decree. The court therein held that “it is not mandatory that the property should be specifically mentioned; it is so only in a mortgage suit under the relevant clauses of the Order 34 of the Code. The decree holder is entitled to proceed against those items mentioned in the petition.” 4. Learned counsel would contend just because there is no mention about the schedule of the property in the decree in O.S.No.643/98 it should not be held that there was no charge on the property at all. He had also relied upon the decision in Francis v. Joseph Skaria reported in 1992(1) KLT 177. The judgment of this court has held that “ a defendant against whom no relief is claimed or granted by a decree is not a party to the suit within the meaning of Section 47(i) which was rendered under a contest to find out the applicability of Section 47 of the Civil Procedure Code”. By going through that dictum in the case W.P.(C) No.5399/2008 5 it may not be applicable to the facts of the present case for the solitary reason that the 2nd defendant has been impleaded in the suit on the ground that he is claiming a charge over the property and with him on party array the court adjudicated a question and entered into a finding that the plaintiff is entitled to get a charge over the property. The sole contention of the 2nd defendant in the suit itself was that charge of this nature cannot be created over his property or the property. 5. The learned counsel would submit that there was no prayer or relief claimed against his party and so the decision relied upon by him is squarely applied. But I cannot accept the said argument of the learned counsel for the reason there is a specific finding whereby his contention has been negatived by the court. So rightly or wrongly the Civil Court of competent jurisdiction after hearing the party as entered into a finding that a charge is created over the property and had granted a decree. It is that decree which is put in execution by the decree holder and it may not be correct for the very same defendant who has suffered a finding against him and who has not challenged the same to challenge the correctness of the decree in execution W.P.(C) No.5399/2008 6 proceedings by resorting to under Order 21 Rule 90 of the Civil Procedure Code. Since the decree has become final, conclusive, binding on the 2nd defendant it is not correct to entertain his plea regarding the non executability of the decree on the property which is made a charge for the realisation of the amount. It has to be remembered when a charge is created it is the property which is affected by the charge and no personal relief is granted and in mortgaged decree and in decrees passed under Section 55(6) of the Transfer of Property Act statutory charge is created. Therefore, I do not find any mistake committed by the court below in rejecting the contention of the present writ petitioner and therefore the writ petition is dismissed. (M.N.KRISHNAN, JUDGE) ps