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Judgment
A. Badharudeen, J
Additional defendants 7 to 9 in O.S.No.160 of 2015 on the file of Munsiff Court, Payyannoor are the petitioners herein. They impugn order in I.A.No.2038 of 2015 in the above Suit dated 3.7.2020. The original plaintiffs, defendants 1 to 4 and 6 are the respondents herein.
Heard on admission.
It is submitted by the learned counsel for the petitioners that the Munsiff Court, Payyannoor allowed an application for amendment of the plaint for incorporating a relief of charge decree over the plaint schedule property. Initially, the Suit was filed for recovery of money and court fee under Section 22 of the Court Fees and Suit Valuation Act was paid. For claiming charge decree, the provision regarding court fee is different. According to the learned counsel for the petitioners, in the written statement filed by the 5th defendant, a specific contention raised to the effect that the Suit is barred by limitation. It was thereafter an amendment to create a charge in the plaint schedule property was set in motion with a view to get over the plea of bar of limitation. According to the learned counsel for the petitioners, the learned Munsiff exceeded his jurisdiction and accordingly he had given emphasis to Section 55 (6)(b) of the Transfer of Property Act to hold that as per Section 55(6)(b) of the Transfer of Property Act, there is a statutory charge. The crux of the argument is that the Suit originally filed after 3 years from the date of agreement is barred by limitation if Article 62 of the Limitation Act cannot be made applicable to the present Suit treating the same as one for refund of advance money with interest under an agreement for sale of an immovable property.
The learned Munsiff, in fact, allowed the petition earlier. Thereafter matter was taken before this Court in O.P(C).No.1370 of 2019. As per order dated 06.02.2020, this Court set aside the said order and remanded the same for fresh consideration in accordance with law after affording reasonable opportunity of hearing to both sides. It was thereafter Ext.P6 order under challenge has been passed by the learned Munsiff. The learned Munsiff referred decisions covering statutory charge under Section 55(6)(b) of the Transfer of Property Act and finally held that by way of amendment proposed, the nature of the Suit could not be changed. Thus the contention raised by the petitioners to the effect that the amendment would change the nature of the Suit was negatived.
Going by the amendment sought for, it could be noticed that the following is the short amendment sought for as could be gathered from Ext.P7, the amendment application:
Proposed amendment:
In the plaint in prayer portion after the prayer No. a. add a new prayer as "b. Create a charge upon the Plaint Schedule property for the amount decreed, and if the defendants failed to pay the amount as directed by the Hon'ble Court, permit the plaintiff to sell the Plaint Schedule Property through the Court and realize the decree amount" and strike `b'. and add "c." and strike `c.' and add "d.".
In para.4 of the plaint produced as Ext.P1, the creation of charge in the plaint schedule property has been narrated. The above portion is extracted hereunder:
It is submitted that as per the agreement, if Puthenpurakkal Gopalan failed to convey the property as per the agreement, he himself and the property is liable for the default. As such a charge was created on the Plaint Schedule Property for the advance sale consideration received by Puthenpurakkal Gopalan.
Going by the amendment proposed in tune with the original contention in the plaint, in fact, much discussion does not require to hold that the amendment proposed is in tune with the contentions raised earlier in the plaint and the same in no way change the nature of the Suit. Since it is found that the Original Petition challenging Ext.P6 is meritless, I am not inclined to admit the same.
In the result, this Original Petition fails and is accordingly dismissed.
It is submitted by the learned counsel for the petitioners that the observations made by the learned Munsiff in Ext.P6 are prejudicial to the petitioners and there shall be an order to the effect that the learned Munsiff shall decide the case untramelled by the observations in Ext.P6.
On perusal of Ext.P6, statutory charge as provided under Section 55 (6)(b) of the Transfer of Property Act and its interpretation by the Apex Court and this Court alone are dealt with. Therefore, I find no reason to allow the said prayer also.