P.B.Suresh Kumar, J.
This appeal is preferred against an order allowing an application under Order 38 Rule 8 of the Code of Civil Procedure.
2. The appellant filed the suit, O.S.No.177 of 2012 on the file of the Principal Sub Court, Irinjalakuda, for specific performance of an agreement for sale of the plaint schedule property. The case of the appellant in the suit is that the third respondent, who is the owner of the property had entered into an agreement with him on 8.8.2011 for sale of the property, after receiving a sum of Rs.35,00,000/- towards advance sale consideration and that the third respondent has not transferred the property as agreed to by him. In the alternative, a decree for recovery of the advance sale consideration was also sought for. Along with the suit, the appellant filed I.A.No.1083 of 2012 and obtained an order of attachment of the very same property on 15/3/2012.
3. The third respondent filed a written statement, contending inter alia that he has neither executed any agreement on 8.8.2011 for sale of the property as claimed by the appellant nor received any amount from the appellant towards advance sale consideration. According to him, he had borrowed a sum of Rs.10,00,000/- from the appellant against the security of a few blank signed stamp papers and the agreement relied on by the appellant is a document created by the appellant making use of one of the signed stamp papers entrusted by him.
4. After the written statement of the third respondent, the plaint was amended and the relief in the suit was confined to recovery of the advance sale consideration, charged on the plaint schedule property.
5. On receipt of information about the attachment obtained by the appellant over the property, respondents 1 and 2 filed I.A.No.2444 of 2012, seeking an order to vacate the attachment, invoking Order 38 Rule 8 of the Code of Civil Procedure. It is alleged in the affidavit filed in support of the said application that on 30.11.2011, the third respondent had agreed to sell the plaint schedule property to them for a total sale consideration of Rs.70,00,000/- and in pursuance to the said agreement, the plaint schedule property was purchased by them from the third respondent prior to the suit, on 5.1.2012 and that the third respondent had, therefore, no attachable interest in the property as on the date of the attachment.
6. The appellant filed objections to I.A.No.2444 of 2012, contending that the document executed by the third respondent in favour of respondents 1 and 2 is a sham document intended to defraud the appellant and that there is no real transfer of property in favour of respondents 1 and 2.
7. In support of I.A.No.2444 of 2012, respondents 1 and 2 had produced before the court below, a certified copy of the sale deed obtained by them, and two other documents, which were marked for the purpose of the above interlocutory application as Exts.A1, A3 and A4 respectively. On the side of the appellant, he gave oral evidence as RW1 and produced the sale agreement claimed to have been executed by the third respondent in respect of the property on 8.8.2011. The sale agreement produced by the appellant was marked for the purpose of the interlocutory application as Ext.B1.
8. The court below found that the appellant has not adduced any evidence to establish that the sale deed dated 5.1.2012 is a sham document and that the question whether the transfer of property in favour of respondents 1 and 2 is to defraud the appellant is not a question which can be gone into in an application under Order 38 Rule 8 of the Code. According to the court below, the question whether the transfer of property in favour of respondents 1 and 2 was intended to defraud the appellant, is a question which arises only in execution, if a decree is passed in favour of the appellant. The court also found that respondents 1 and 2 became absolute owners of the property by virtue of the sale deed executed by the third respondent. In view of the said findings, the court below allowed I.A.No.2444 of 2012 and directed release of the property from attachment.
9. We have heard the learned counsel for the appellant and also the learned Senior Counsel for respondents 1 and 2.
10. The learned counsel for the appellant pointed out that in view of the agreement executed by the third respondent in his favour on 8.8.2011, a statutory charge is created over the property, as provided for under Section 55(6) (b) of the Transfer of Property Act and in view of the said statutory charge, the claim petition ought not have been allowed by the court below.
11. Per contra, the learned Senior Counsel appearing for respondents 1 and 2 contended that the third respondent had denied the execution of the agreement dated 8.8.2011 in the written statement filed by him and therefore, it cannot be contended that a charge was created over the property in favour of the appellant. He has also pointed out that even assuming that a charge is created over the property, respondents 1 and 2 being bonafide purchasers of the property for consideration, are entitled to the benefit of the second part of Section 100 of the Transfer of Property Act.
12. We have perused the contents of the written statement filed by the third respondent in the suit. It is seen that the execution of the agreement dated 8.8.2011 relied on by the appellant is not admitted by the third respondent. In view of the stand taken by the third respondent in the written statement, the question whether there was an agreement on 8.8.2011, as claimed by the appellant, is a matter to be decided at the time of trial and the question whether a charge, as provided for in Section 55(6)(b) of the Transfer of Property Act was created over the property in favour of the appellant by virtue of the agreement for sale claimed to have been executed by the third respondent will depend on the decision of the court as to the genuineness of the agreement dated 8.8.2011. As such, at this stage, the question as to whether a charge was created over the property in favour of the appellant or not cannot be decided. It is beyond dispute that the question that arises for consideration in an application under Order 38 Rule 8 of the Code of Civil Procedure is as to whether the property attached is liable to be proceeded against or not for enforcement of the decree sought for by the plaintiff. As such, if it is found at the time of trial that the agreement dated 8.8.2011 is a genuine document, a charge in favour of the appellant for the amount claimed by him in the suit will have to be conceded and in that event, the claim raised by respondents 1 and 2 cannot be upheld.
13. In the said view of the matter, we allow the appeal, set aside the impugned order and direct the court below to consider I.A.No.2444 of 2012 along with the suit. In the nature of the relief sought for in the suit, it is open to the appellant to implead respondents 1 and 2 also in the suit. In the peculiar facts of this case, we also deem it appropriate to direct the Sub Court, Irinjalakkuda to dispose of the suit, O.S.No.177 of 2012 within a period of four months from today and it is ordered accordingly.
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P.N.RAVINDRAN, JUDGE.
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P.B.SURESH KUMAR, JUDGE.
tgs (true copy)