Bhajanpal Singh vs Mahaveer Chand and Others

Nisha Gupta, J.—This first appeal under Section 96 CPC read with O. 21 R.97 and O.21 R.100 and 103 CPC has been filed against the order dated 12.9.2008 passed Additional District Judge (Fast Track) No. 2, Beawar in Civil Misc. Appl. No. 106/2007 whereby application filed by the appellant under O.21 R.97 CPC has been dismissed.

The brief facts of the case are that a suit was filed by Mahaveer Chand on the ground that an agreement to sell was executed between Mahaveer Chand and Bhupendra on 9.12.2003 on which a decree was passed in favour of Mahaveer Chand and against Bhupendra, the objections have been filed by the present appellant on the ground that present appellant has purchased the property on the strength of agreement to sell which has been executed prior to agreement executed between decree holder and judgment debtor. On 2.12.2003, agreement to sell was executed between judgment debtor and Satvendra and thereafter power of attorney was executed in favour of Satvender Singh and Satvender Singh has executed sale deed in his favour on 30.3.2005, hence he has independent title from the judgment debtor and he cannot be dispossessed under the decree. His further contention is that court below has not framed issues or gave any chance to the parties to lead evidence even he has not given chance to submit sale deed or power of attorney.

Per contra, the contention of the respondent is that present appellant has purchased the land from Satvender who was the power of attorney holder of the judgment debtor and during the pendency of the suit, that is on 30.3.2005. In alleged agreement to sell dated 2.12.2003, present appellant was not the party. Sale deed has been executed in favour of appellant by power of attorney holder of judgment debtor, the present appellant has stepped in the shoes of judgment debtor and he has no independent title or right from the judgment debtor. On 29.11.2004, the court gave stay against the judgment debtor not to alienate the property further, hence in view of the stay operating, the sale is null and void.

Heard the learned counsel for the parties on admission and perused the judgment and decree under appeal as well as the original record of the case.

The first contention of the present appellant is that no opportunity of leading evidence has been allowed to him and no opportunity of producing sale deed or power of attorney has been given to him and reliance has been placed on Ashan Devi and Another Vs. Phulwasi Devi and Others, where the Apex Court has held that if the executing court has recorded the evidence it was within his jurisdiction.

Per contra, the respondent has relied upon Sri Vaishnav Brahmin Trust Vs. Ramesh Chandra and Others, wherein it has been held that on the basis of affidavits, objection under O.21 R.97 CPC could be decided. Further reliance has been placed on Lalita Vs. Civil Judge (Jr. Div.) and Others, and Bhagwat Narayan Dwivedi Vs. Kasturi, .

In view of the above, it was not obligatory on the part of court below to record the evidence particularly when there is no dispute about the fact that present appellant has purchased the property vide sale deed executed by Satvender as a power of attorney holder of Bhupendra on 30.3.2005, appellant was free to file the relevant documents along with the objections but he has not chosen to do so.

The contention of the respondent is that appellant is having no right title or interest independent from that of judgment debtor and reliance has been placed on Usha Sinha Vs. Dina Ram and Others, wherein it has been held:

"Before one and half century, in Bellamy v. Sabine,, Lord Cranwoth, L.C. proclaimed that where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind require that the decision of the Court in the suit shall be binding not only on the litigating parties, but also on those who derive title under them by alienations made pending the suit.

In Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, , this Court held that where the resistance is caused or obstruction is offered by a transferee pendente lite, the scope of adjudication rais confined to a question whether he was a transferee during the pendency of a suit in which the decree was passed. Once the finding is in the affirmative, the Executing Court must hold that he had no right to resist or obstruct and such person cannot seek protection from the Executing Court. The Court stated: (SCC pp. 727-28, para 10).

We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum. In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated. The High Court, in our opinion, rightly held that the appellant could not be said to be a ''stranger'' to the suit inasmuch as she was claiming right, title and interest through defendant Nos. 4 and 5 against whom the suit was pending. She must, therefore, be presumed to be aware of the litigation which was before a competent Court in the form of Title Suit No. 140 of 1999 instituted by the present respondent against the predecessor of the appellant.

As held in Bellamy, the fact that the purchaser of the property during the pendency of the proceedings had no knowledge about the suit, appeal or other proceeding is wholly immaterial and he/she cannot resist execution of decree on that ground."

In the light of the above, the present appellant is not stranger to the suit, he has purchased the property pending suit and he has no independent interest from the judgment debtor.

Consequently, the appeal fails and is dismissed.