JUDGMENT : This regular first appeal has been filed under Section 96 read with Order XLI Rule 1 of the Civil Procedure Code (hereinafter referred to as ‘CPC’ for short) by the claimant in EA No.333/2012 in E.P.No.176/2011 in O.S.No.485/2007 on the files of the Principal Sub Judge, North Paravur. 2. I shall refer the parties in this regular first appeal as ‘claim petitioner’, ‘plaintiff’ and ‘defendant’ hereafter for easy reference. 3. Heard the learned counsel for the claim petitioner and the learned counsel appearing for the plaintiff. No representation for the defendants. 4. The miniscule certitude in this matter is as under: The claim petitioner had filed petition under Order XXI and Rule 58 of CPC, claiming absolute right and title over the decree schedule property on the strength of a sale deed executed by the defendant in his favour, as on 02.11.2007, as per sale deed No.3073/07 of Kuzhuppilly SRO. According to the claim petitioner, since he obtained title over the entire property as on 02.11.2007 and the decree in the Suit was obtained between the plaintiff and defendant in collusion and by committing fraud on both, the property is not liable to be proceeded to realise the decree debt. 5. The plaintiff opposed the claim raised by the claim petitioner contending that earlier there was an agreement, executed by the defendant in favour of the plaintiff as on 13.03.2007, to sell the property on receipt of advance sale consideration of Rs.2,00,000/- (Rupees two lakh only). But the sale agreement could not be executed and thereby the plaintiff filed the present suit and to get back the money and decree was passed accordingly, negativing the contention raised by the defendant. 6. The execution court considered the claim based on the evidence recorded as that of PW1 and Exts.A1 to A3 on the side of the claim petitioner and RW1 and Ext.B1 on the side of plaintiff. Finally, the execution court dismissed the claim petition after observing paragraph No.11 of the impugned verdict, which reads as under: “11. The learned counsel for the respondent further rightly pointed out that as per the agreement for sale executed in between the decree holder and the judgment debtor, the total value of the property is 8 ½ lakhs. Finally, the execution court dismissed the claim petition after observing paragraph No.11 of the impugned verdict, which reads as under: “11. The learned counsel for the respondent further rightly pointed out that as per the agreement for sale executed in between the decree holder and the judgment debtor, the total value of the property is 8 ½ lakhs. Whereas as per ext.A1 the judgment debtor alleged to have been sold the property to the petitioner only for a sum of Rs.2 ½ lakhs. So, a cumulative consideration of the evidence adduced by both sides, I am of the view that there are sufficient reasons and circumstances to hold that the petitioner is not a bona fide purchaser and Ext.A1 document is created only with a malafide intention to defeat the creditor (1st respondent) decree holder herein. Therefore, the petitioner is not entitled to get any relief as prayed for. Resultantly, the petition is liable to be dismissed. I do so.” 7. At the time of hearing, the learned counsel for the claim petitioner reiterated the contentions raised before the execution court and submitted that as on 02.11.2007, when the claim petitioner purchased the property, he had verified all liabilities subsisting in the scheduled property, but no encumbrance found and accordingly, the property was purchased for valid consideration. According to the learned counsel for the claim petitioner, the plaintiff did not institute a suit for specific performance of contract instead filed a suit to get back the money and the suit was decreed as the outcome of collusion between the plaintiff and the defendant. Therefore, the decree schedule property/claim petition schedule property is not liable to be proceeded for getting back the advance money, if any, covered by the decree. 8. Opposing this contention, the learned counsel for the plaintiff would submit that as on 13.03.2007, the defendant executed an agreement in favour of the plaintiff to sell the property for a total consideration of Rs.8,50,000/- (Rupees eight lakh and fifty thousand only) and the plaintiff paid Rs.2,00,000/- (Rupees two lakh thousand only) as advance towards part sale consideration. 8. Opposing this contention, the learned counsel for the plaintiff would submit that as on 13.03.2007, the defendant executed an agreement in favour of the plaintiff to sell the property for a total consideration of Rs.8,50,000/- (Rupees eight lakh and fifty thousand only) and the plaintiff paid Rs.2,00,000/- (Rupees two lakh thousand only) as advance towards part sale consideration. Even though the plaintiff was ready to execute the sale deed, on enquiry, it was revealed by the plaintiff that the defendant had pledged the documents of the plaint schedule property with the State Bank of India, Cherai Branch and encumbered the same and the said liability was not disclosed at the time of execution of the agreement. Accordingly, the defendant failed to execute the sale deed after clearing the liability. At this juncture, suit to get back the advance sale consideration was filed. 9. It is pointed out by the learned counsel for the plaintiff further that the defendant strongly contested the suit, raising all contentions available and after adducing evidence from both sides, the trial court decreed the suit, finding execution of the sale agreement by the defendant and there is no collusion as alleged by the learned counsel for the claim petitioner. 10. In the instant case, the legal questions pose for consideration are, 1. When there is a sale agreement, prior to execution of the subsequent sale deed, in relation to an immovable property; whether the subsequent purchaser would get absolute title over the property on the strength of the sale deed ignoring the liability, if any, covered by a previous agreement for sale in between the vendor and a third party? 2. What is intended by Section 55(6) (b) of the Transfer of Property Act, 1882, insofar as purchase money paid either in part or full? 11. In the instant case, admittedly and as discernible from the records, the claim petitioner purchased the property only on 02.11.2007 and prior to that the defendant, who sold the property to the claim petitioner executed an agreement on 13.03.2007, as submitted by the learned counsel for the plaintiff, to sell the property to the plaintiff. For the reasons highlighted by the learned counsel for the plaintiff, sale deed could not be executed and accordingly, the plaintiff filed suit to get back the advance money and the same was decreed finding execution of the sale agreement by the defendant. For the reasons highlighted by the learned counsel for the plaintiff, sale deed could not be executed and accordingly, the plaintiff filed suit to get back the advance money and the same was decreed finding execution of the sale agreement by the defendant. In this context, Section 55(5) of the Transfer of Property Act (hereinafter referred to as ‘TP Act’ for short) has noteworthiness. The same deals with rights and liabilities of the buyer and the seller. 12. Section 55(6)(b) of the TP Act provides as under: “55. Rights and liabilities of buyer and seller. (6) The buyer is entitled— (a) xxxxx (b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller's interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.” 13. On reading Section 55(6)(b) of the T.P. Act, a charge on the property is created as against the seller and all persons claiming under him to the extent of the seller’s interest in the property for the amount of any purchase money properly paid by the buyer in anticipation of delivery and for the interest of such amount. Therefore, when there is a sale agreement and payment of sale consideration either in part or in full, if the sale deed could not be executed, the proposed buyer is entitled to get back the sale consideration in view of the statutory charge created under Section 55(6)(b) of the TP Act and the same shall run with the land. Therefore, the title of the claim petitioner herein is subject to the said charge and the property is liable to be proceeded for realization of the amount due under the decree herein, unless the claim petitioner is not discharging the said liability in the form of statutory charge. 14. Therefore, the title of the claim petitioner herein is subject to the said charge and the property is liable to be proceeded for realization of the amount due under the decree herein, unless the claim petitioner is not discharging the said liability in the form of statutory charge. 14. In view of the above, the claim put up by the claim petitioner, dismissed by the execution court, is only to be justified and therefore, this regular first appeal fails. In the result, this regular first appeal stands dismissed. All interlocutory orders stand vacated and all interlocutory applications pending in this regular first appeal stand dismissed. Registry is directed to forward a copy of this judgment to the trial court forthwith.