IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 OP(C).No. 2363 of 2011(O) ------------------------------------- [EP.NO. 285/2009 IN OS.NO.980/2003 OF FIRST ADDITIONAL SUB COURT,THRISSUR] .................... PETITIONER: ------------------- SUMA, W/O.SIVADASAN, AGED 36 YEARS, KANIMANGALAM DESOM, VILLAGE & POST, THRISSUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.C.A.CHACKO. RESPONDENT: ---------------------- PRINCE, S/O.ALAPPADAN GEORGE, KANIMANGALAM DESOM, VILLAGE & POST, THRISSUR TALUK, THRISSUR DISTRICT-680 027. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2363/2011-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SETTLEMENT DEED NO.4340/2003 OF SRO., AYYANTHOLE. EXT.P.2: COPY OF THE JUDGMENT DTD. 20/02/2008 IN O.S. 980/2003 OF SUB COURT, THRISSUR. EXT.P.3: COPY OF THE EXECUTION PETITION NO. 285/2009 FILED BY THE RESPONDENT BEFORE SUB COURT, THRISSUR. EXT.P.4: COPY OF THE OBJECTION DTD. 07/04/2010 FILED BY THE PETITIONER'S HUSBAND ON EXT.P.3. EXT.P.5: COPY OF THE E.A. 1377/2010 FILED BY THE PETITIONER BEFORE THE SUB COURT, THRISSUR. EXT.P.6: COPY OF THE DRAFT SALE PROCLAMATION WITH AUCTION NOTICE PRODUCED BY THE RESPONDENT BEFORE THE COURT BELOW. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2363 of 2011 -------------------------------------- Dated this the 22nd day of July, 2011. JUDGMENT Petitioner challenges Ext.P3, E.P.No.285 of 2009 in O.S.No.980 of 2003 of the court of learned First Additional Sub Judge, Thrissur. That is a suit filed by the respondent against the husband of petitioner for recovery of money based on an agreement for sale dated 26.06.2003 as per which the husband of petitioner agreed to sell the property to the respondent and received advance sale consideration. Respondent, rescinding the contract sought recovery of advance purchase price. During the pendency of suit property was placed under attachment. Later the suit was decreed and respondent wanted to proceed against the property. At that stage petitioner, wife of defendant claimed that as per a settlement deed executed in her favour on 05.09.2003 (prior to the institution of the suit) she is the absolute owner in possession of the property and that property is not liable to be proceed against. Thought petitioner filed E.A.No.1377 of 2010 under Rule 58 of Order 21 of the Code of Civil Procedure it was dismissed for default. Learned counsel submitted that the application for restoration of E.A.No.1377 of 2010 also ended in dismissal. Respondent filed draft sale proclamation before learned First Additional Sub Judge for sale of property. Learned counsel contended that the decree does not create statutory charge over the property and hence it cannot be proceeded against. OP(C) No.2363/2011 2 2. Since liability of husband of petitioner to pay the amount arises from an agreement for sale which the trial court found in favour of respondent, the property is subject to statutory charge notwithstanding that the decree does not mention about charge over the property. Hence remedy of petitioner was elsewhere, she resorted to that and failed. In that situation challenge to the execution proceeding is not sustainable and cannot stand. I do not find reason to interfere in the matter. Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks