Sri M Kudiarasu Vs Smt Bhagyalakshmi

THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT DATED 31.01.2022 PASSED IN EX.NO.25496/2012 ON THE FILE OF THE LXXVIII ADDITIONAL CITY CIVIL JUDGE, MAYOHALL, BANGALORE, DISMISSING THE APPLICATION FILED UNDER ORDER XXI RULE 97 OF CPC AND ETC.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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This appeal is filed by the objector, who is

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assailing the order dated 31.01.2022 passed by the Executing Court on an application filed under Order XXI Rule 97 read with Section 151 of CPC.,

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The ranks of the parties are referred as they are ranked before the Trial Court.

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HC-KAR

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Facts leading to the case are as under;

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The Decree Holder - Bhagyalakshmi filed a suit for

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specific performance of the contract in O.S.No.10016/1996 based on an agreement dated 31.07.1993 executed by the Judgment Debtor - D.M.Gangadharaiah. The original Judgment Debtor - D.M.Gangadharaiah contested the suit and the suit was decreed in favour of the Decree Holder on 03.06.2003. The Original Judgment Debtor assailing the decree for specific performance granted in the above said suit filed an appeal before this Court in RFA No.1474/2003. The first appeal is dismissed on 05.08.2013.

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The Decree Holder, in execution of the decree, initiated Execution Petition No. 25496/2012 on

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21.11.2012. Upon issuance of the delivery warrant, the Objector, claiming to have purchased the subject property on 28.01.2013, filed an application under Order XXI Rule 97 of the Code of Civil Procedure. As the Objector asserted

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an independent title while resisting delivery, the Executing Court directed the parties to lead evidence. The Objector examined himself as P.W.1 and produced a certified copy of the sale deed dated 28.01.2013, marked as Ex.P.1. He further relied upon the earlier sale deed executed in favour of his vendor, G. Jeevana Lakshmi, dated 20.03.2001. In support of his claim to lawful possession, the Objector also relied on the sanctioned building plan and housing loan documents.

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However, upon comprehensive appraisal of the evidence, the Executing Court declined to accept the Objector’s claim of ownership. It found that the Objector’s contention that the decree was obtained without impleading the true owner and was enforced against the Judgment Debtor, who was merely a General Power of Attorney holder of one Munivenkatappa was untenable.

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The Executing Court concluded that the Objector had failed to establish any independent title to the property and

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accordingly dismissed the application filed under Order XXI

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Rule 97 CPC.

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Heard learned counsel appearing for the Objector and learned counsel appearing for the Decree Holder. There is no representation on behalf of original Judgment Debtor.

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The following point that would arise for

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consideration is;

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Whether the order of the Executing Court in rejecting the application filed by the Objector under Order XXI Rule 97 read with 151 of CPC., suffers from perversity and warrants interference?

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Findings on Point No.1 :-

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On examination of the materials on record, the

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case on hand depicts a peculiar facts. The Decree Holder filed a suit for specific performance of contract in O.S.No.10016/1996 based on the agreement dated

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31.07.1993 executed by the original Judgment Debtor - D.M.Gangadharaiah. The Judgment Debtor contested the

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suit. The Trial Court having relegated the parties to lead evidence held that the agreement to sell obtained by the plaintiff is proved and consequently, the suit is decreed by the judgment and decree dated 03.06.2003. It is also

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relevant to note that the suit was filed on 04.01.1996.

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From the records now produced by the Objector, this Court finds it rather startling that the defendant in the suit, who had all along contested the proceedings in O.S. No.10016/1996 by asserting himself to be the absolute owner of the suit schedule property, proceeded during the pendency of the said suit to create third-party rights in the property. Specifically, it is revealed that the Judgment Debtor, D.M. Gangadharaiah, executed a sale deed dated 20.03.2001 in favour of one G. Jeevana Lakshmi, acting purportedly as the General Power of Attorney (GPA) Holder of his father, one Munivenkatappa. This sale deed has been produced in the execution proceedings and marked

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as Ex.P.2. Importantly, the said transaction occurred while the suit for specific performance instituted by the plaintiff on 04.01.1996 was still sub judice, and prior to the decree being granted on 03.06.2003. Consequently, the transfer of property during the pendency of litigation is clearly hit by the doctrine of lis pendens embodied under Section 52 of the Transfer of Property Act, 1882.

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It is pertinent to note that the Objector has failed to establish that Munivenkatappa was, in fact, the absolute owner of the suit schedule property, or that the Judgment Debtor—D.M. Gangadharaiah had no saleable interest therein. Even assuming for the sake of argument that Munivenkatappa held title to the property, the transaction carried out through his alleged GPA Holder (the Judgment Debtor) during the pendency of a suit where the very same Judgment Debtor was asserting ownership, raises serious doubts as to the bona fides of the sale transaction. The fact that the Judgment Debtor, while actively contesting the suit for specific performance,

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simultaneously claimed to be acting merely as a GPA Holder in executing the sale deed, compels this Court to draw a strong inference of collusion. Whether the purchaser, G. Jeevana Lakshmi, was made aware of the pendency of the litigation has not been established during the enquiry before the Executing Court. Moreover, the sale deed obtained by the present Objector is subsequent to the decree dated 03.06.2003 passed in O.S. No.10016/1996. It is also relevant to mention that in the Regular First Appeal (RFA No.1474/2003) filed by the Judgment Debtor, the same was dismissed upon a statement made by the Decree Holder to the effect that the Judgment Debtor had already sold the property in 2013 a statement that appears factually inaccurate and misleading, particularly when viewed in the context of the Judgment Debtor’s prior transaction in 2001.

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The Objector, being a purchaser pendente lite , cannot claim independent rights against the decree passed in the suit for specific performance. His rights, if any, are

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circumscribed by the principles set out in Section 52 of the Transfer of Property Act. It is a well-settled proposition of law that a pendente lite purchaser steps into the shoes of the Judgment Debtor and is bound by the outcome of the litigation. Such a purchaser cannot assert superior title or claim to be in lawful possession so as to obstruct the execution of a decree lawfully passed by a competent civil court. Therefore, the Objector, who admittedly purchased the property after the decree was passed in favour of the Decree Holder, has no locus standi to obstruct the execution proceedings.

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The records unmistakably reveal that the mischief originates from the conduct of the Judgment Debtor himself, who, during the pendency of the specific performance suit, clandestinely created third-party rights by executing a sale deed in favour of G. Jeevana Lakshmi in 2001. This act was undertaken despite his own claim of ownership in the pending suit, thereby casting serious doubt on the genuineness of the transaction. This Court is

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unable to ignore the apparent attempt by the Judgment

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Debtor to defeat the rights of the Decree Holder by executing a transaction calculated to frustrate the judicial process.

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The Objector has also failed to produce material evidence to substantiate that either the Judgment Debtor or his father Munivenkatappa was the true and lawful owner of the suit property. Even assuming that the Judgment Debtor acted as a GPA Holder of Munivenkatappa, the Objector has not placed on record either the original or certified copy of the General Power of Attorney alleged to have been executed by Munivenkatappa. Likewise, the sale deed executed by D.M. Gangadharaiah in favour of G. Jeevana Lakshmi, which is claimed to be based on the said GPA, also remains uncorroborated by supporting evidence. In the absence of

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these foundational documents, the Objector’s claim to independent title stands wholly unsubstantiated.

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Bearing in mind the limited scope of adjudication

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under an application filed under Order XXI Rule 97 read with Section 151 of the Code of Civil Procedure, this Court finds that the Executing Court was fully justified in rejecting the Objector’s application. On a reappraisal of

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the evidence on record, this Court finds no material to demonstrate that Munivenkatappa was the absolute owner of the suit property. There is also no documentary evidence to establish that he executed a valid General Power of Attorney in favour of the Judgment Debtor. Furthermore, there is no material to show that the earlier purchaser, G. Jeevana Lakshmi, acted in good faith and after conducting due diligence. Consequently, the sale deed obtained by the present Objector in 2013, being after the decree was passed in O.S. No.10016/1996, does not confer any independent right, title, or interest upon him.

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As such, the Objector, being a pendente lite purchaser, has no locus to obstruct the enforcement of a decree for

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