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Friday, January 13, 2017

Even though the appellant is not a party to the suit, he is bound by the decree passed by the trial Court in O.S.No.462 of 2006 by virtue of the provisions of Section 52 of the Transfer of Property Act. Therefore, he cannot set up an independent right in the schedule property and file a claim petition taking objection to the execution of the registered sale deed in terms of the decree and judgment passed by the trial Court. Rule 102 of Order XXI of CPC lays down that a purchaser of the suit property during the pendency of the litigation cannot resist the possession. Therefore, as rightly held by the executing Court, the execution application is not maintainable.

HONBLE SRI JUSTICE R.KANTHA RAO      

APPEAL SUIT NO. 117 OF 2016    

22-04-2016

Shaik Afzal .....Appellant/Claim petitioner/Third party

 Mohd. Amjad Ali and two others .....RESPONDENTS/plaintiff/Dhr/defendants/JDRs

Counsel for petitioner: Sri Venkat Reddy Donthi Reddy

Counsel for  respondents : Sri M.L. Ali

<GIST:

>HEAD NOTE:  

? Cases referred:

 (2011) 15 SCC 377

THE HON'BLE SRI JUSTICE R.KANTHA RAO      

APPEAL SUIT No.117 of 2016  

The Court made the following:

THE HONBLE SRI JUSTICE R.KANTHA RAO        

APPEAL SUIT No.117 of 2016  

JUDGEMNT:  

      This appeal is directed against the order dated 18.12.2015 passed in
E.A.No.50 of 2015 in E.P.No.776 of 2014 in O.S.No.462 of 2006 passed by the
II Additional Senior Civil Judge, Warangal.

      For the sake of convenience, the parties hereinafter will be referred
to as the plaintiff, the defendants and the claim petitioner.

      The appellant herein is the claim petitioner.  He is a third party to the
suit as well as the execution proceedings.

      The plaintiff filed the suit against the defendants on 16.04.2006 for
specific performance of an agreement to sell, dated 12.07.2006 executed
by the defendant in respect of the house site admeasuring 350 sq. yards.
During the pendency of the suit, the defendant died in the year 2007.
Thereafter, his wife and son were brought on record as his legal
representatives on 31.10.2007 and they are defendants 2 and 3 in the suit.
Thereafter, the suit for specific performance was decreed on 10.09.2014.
During the pendency of the suit, the defendants 2 and 3 allegedly sold an
extent of 143.40 square yards of house site wherein there is a built up area
of 437 square feet, under registered sale deed to the claim petitioner on
07.01.2013.  The said suit was decreed in favour of the plaintiff and against
the defendant on 10.09.2014.
       
      Subsequently, the plaintiff filed execution petition under Order XXI
Rule 34 CPC seeking execution of registered sale deed by defendants 2
and 3.  In the said E.P. the third party-claim petitioner filed a claim petition
claiming that he purchased the part of the schedule property to an
extent of 143.40 square yards with built up area of 437 square feet on
07.01.2013 from defendants 2 and 3.  After making an enquiry into the
claim petition, the earned executing Court dismissed the claim petition as
not maintainable on the ground that there is no prior attachment of the
schedule property. Against the said order, the third party-claim petitioner
filed the present appeal.

      The facts above referred are admitted.  The claim petition was filed
under Order XXI Rule 58 of CPC.
The learned trial Court expressed the view that since there is no prior
attachment of the property in execution of the decree, the claim petition
filed under Order XXI Rule 58 of C.P.C. is not maintainable.

      It is the contention of the learned counsel appearing for the
appellant-claim petitioner that even though the claim petition is not
maintainable under Order XXI Rule 58(1) of CPC, the trial Court ought to
have treated the petition as one filed under Order XXI Rule 97 CPC and
ought not to have dismissed the claim petition.

        On the other hand, it is contended by the learned counsel
appearing for the plaintiff decree-holder that in the peculiar facts and
circumstances of the case, the claim petition under Order XXI Rule 97 of
CPC is also not maintainable.

      In support of his contention, the learned counsel appearing for the
appellant-claim petitioner relied on a decision in HAR VILAS v. MAHENDRA
NATH ND OTHERS  wherein the Supreme Court held that a third person  
claiming to be in possession of property forming subject matter of decree
in his own right can resist delivery of possession even by filing an objection
under Order XXI Rule 97 of CPC in executing court itself and the objections
have to be determined by executing court itself.

      Basing on the above judgment, the learned counsel appearing for
the appellant contends that the trial Court ought to have made detailed
enquiry into the objection raised by the appellant by treating the claim
petition as one filed under Order XXI Rule 58 of CPC and committed a
grave mistake in dismissing the claim petition on the ground that it is not
maintainable.

      The judgment relied on by the learned counsel appearing for the
appellant is not applicable to the facts of the present case.

      The claim petition is filed by the appellant at the stage when the
execution petition was filed seeking a direction to defendants 1 and 2 to
execute the decree and in the event of their failure praying the court to
execute a registered sale deed as per the decree and judgment passed
by the trial Court.

       Therefore, in the instant case, the objection is taken in the
execution which is filed seeking execution of registered sale deed in terms
of the decree and judgment passed by the trial
Court.  The crucial aspect in the instant case is that in the suit filed by the
appellant against the first defendant obtained an injunction restraining
him or his men or agents from alienating the suit schedule property.  The
same was granted and subsequently it was also made absolute.  After his
death, the defendants 2 and 3 were brought on record.  Since the
defendants 2 and 3 were brought on record as legal representatives of
the first defendant, the order of injunction restraining the first defendant
from alienating the property also operates against the defendants 2 and
3.  Therefore, the defendants 2 and 3 in violation of the order of injunction,
sold part of the scheduled property to the appellant-third party.  Thus, the
third party-appellant is purchaser pendente lite but not absolute owner of
the property in his own right.  The judgment relied on by the learned
counsel appearing for the appellant cited supra is therefore not
applicable to the facts of the present case.  The defendants 2 and 3
adopted the written statement filed by the first defendant but they did
not bring it to the notice of the trial Court that pending suit they sold the
property to the appellant.  The appellant also did not get himself
impleaded as a party in the suit by making an appropriate application.
Even though the appellant is not a party to the suit, he is bound by the
decree passed by the trial Court in O.S.No.462 of 2006 by virtue of the
provisions of Section 52 of the Transfer of Property Act.  Therefore, he
cannot set up an independent right in the schedule property and file a
claim petition taking objection to the execution of the registered sale
deed in terms of the decree and judgment passed by the trial Court.  Rule
102 of Order XXI of CPC lays down that a purchaser of the suit property
during the pendency of the litigation cannot resist the possession.
Therefore, as rightly held by the executing Court, the execution
application is not maintainable.
        Consequently, the order dated 18.12.2015 passed in E.A.No.50 of
2015 in E.P.No.776 of 2014 in O.S.No.462 of 2006 by the II Additional Senior
Civil Judge, Warangal is hereby confirmed and the appeal is dismissed
without any order as to costs.
      Pending miscellaneous petitions, if any, shall stand closed in
consequence.
________________  
R.KANTHA RAO,J  
Date:22.04.2016

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