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2008 DIGILAW 351 (KAR)

Chawla Mohan Krishna Gupta v. Neelgar Ranganath

2008-07-03

V.JAGANNATHAN

body2008
JUDGMENT V. Jagannathan, J. The appellant herein filed a suit in O.S.No. 92/81 for specific performance against one Maharudrappa V. Hubli and the said suit was decreed in favour of the appellant on 28.9.89. On appeal by the defendant, the judgement of trial Court was reversed and second appeal preferred by the appellant was allowed in his favour on 27.3.98 The defendant moved the Apex Court and at the initial stage the petition was dismissed. The appellant being the decree holder, moved the Executing Court by filing and application under Order 21, Rule 101 r/w Section and 151 C.P.C. for appellant being put in physical possession of the suit property following the sale deed being executed in favour of the appellant through the Court Commissioner. Following warrant being issue by the Executing Court, the respondents herein prevented the Court officials from executing the warrant and filed their objections before the Executing Court under Order 21, Rule 97 and 101 r/w 47 and 151 of C.P.C. The trial cour allowed the said applications filed by the respondents and also declared that the respective respondents are the absolute owners of the suit items, namely CTS 3772 in respect of the applicants in I.A.9 and CTS 3773 in respect of the applicants in I.A. 19 The lower appellate Court confirmed the decision of the trial Court and held that the respective applicants in I.A.9 and I.A. 19 are the absolute owners in possession of CTS 3772 and CTS 3773 respectively and held that the decree obtained by the decree holder is not binding on the applicants. Aggrieved by the concurring findings of the Courts below in allowing the applications filed by the objectors, the decree holder has preferred this second appeal. 2. The facts up to the stage of the appellant approaching the Executing Court are not in dispute. In other words, the appellant succeeded in suit for specific performance and it was ultimately confirmed by the Apex Court. Sale deed was executed in Favour of the appellant in respect of the suit items through the Court Commissioner. It is only when the warrant of execution was issued, that the objectors moved the Executing Court by filing I.A.9 and I.A.19 contending that they are the absolute owners of the respective suit items and both the objectors traced title to the suit properties to the sons of the judgements debtor. It is only when the warrant of execution was issued, that the objectors moved the Executing Court by filing I.A.9 and I.A.19 contending that they are the absolute owners of the respective suit items and both the objectors traced title to the suit properties to the sons of the judgements debtor. It is their case that there was a partition in the family and the three sons of judgement debtor became the owners of the suit items and inturn the applicant in I.A. 19 purchased suit item CTS 2773 under a registered sale deed executed by the sons of the judgement debtor on 6.7.90 and since then the applicant is in lawful possession of the said suit item as the absolute owner. The applicant in I.A.9 traced his title to the suit property following compromise decree entered into in O.S. No. 71/99. 3. Thus, in both the applications I.A. 9 and I.A. 19 the respective applicants who were the objectors contended that they are the third parties as such, they are not bound by the decree passed in favour of the appellant and it was also their case that they were not claiming the suit items under the decree passed by the trial Court independently of the said decree and therefore the decree passed in favour of the appellant does not bind them. 4. One other contention taken by the objectors before the trial Court was that this Court in C.R.P. No. 5455/89 had observed that the sons of the judgment debtor who are the petitioners before this Court, were not impleaded in the suit that was filed by the appellant, and their interest will not be affected. 5. The trial Court taking into account these two factors, namely objectors claiming that they derive the interest in the suit properties from the sons of judgment debtor and not directly from judgment debtor, and therefore the trial Court held that the title traced by the objectors was independent of the decree passed against the judgment debtors. 5. The trial Court taking into account these two factors, namely objectors claiming that they derive the interest in the suit properties from the sons of judgment debtor and not directly from judgment debtor, and therefore the trial Court held that the title traced by the objectors was independent of the decree passed against the judgment debtors. Secondly, the trial Court also took note of the observations made by this Court in the aforesaid C.R.P. No. 5455/89 that any decree passed in the suit will not bind the interest of the sons of the judgment debtor; ultimately on the basis of aforesaid material on record, the trial Court allowed the applications filed by the objectors by its common judgment, held that the applicants in I.A.9 and I.A.19 are the absolute owners in possession of the respective suit items and that the decree obtained by the decree holder is not binding on the applicants. The lower appellate Court concurred with the said findings of the trial Court. 6. I have heard the learned Counsel for the parties. Learned Counsel Sri. C. B. Srinivasan for the appellant submitted that both the Courts below committed serious error in taking the view that the applicants who are objectors in the execution proceedings were claiming their title independently of the judgment debtor and this finding is erroneous and contrary to the evidence on record. It is submitted in this connection that though the applicants contended before the trail Court that there was a partition in the family of the judgment debtor and the sons of the judgment debtor became the owners of the suit properties, yet there was no evidence placed by the objectors in proof of the said partition having taken place in the family of the judgment debtor. Hence, in the absence of there being evidence indicating partition having taken place, the trial Court as well as the lower appellate Court were not justified in taking the view that the suit items fell into the hands of the three sons of the judgment debtor. 7. The other submission made in this connection is, though the objectors have taken up stand that there was partition, yet the alleged partition is brought to light only in the year 1989 stating that the partition took place in the year 1974. 7. The other submission made in this connection is, though the objectors have taken up stand that there was partition, yet the alleged partition is brought to light only in the year 1989 stating that the partition took place in the year 1974. Hence, the contention of the applicants that there was partition in the family, cannot be accepted, more so when the applicants did not examine either the sons of the judgment or the judgment debtor himself in order to substantiate this contention taken by them. 8. The next submission put forward is that the observations of this Court that any decree passed in the suit will not bind the interest of the sons of the judgment debtor, cannot be construed as having the effect or nullyfying the binding effect of the decree passed in favour of the appellant. It was submitted that since the sons of the judgment debtor were not impleaded in the suit filed by the appellant, it goes without saying that the interest of the sons will not be anyway affected by the decree that is passed in the suit in question. Therefore, notwithstanding the observations of this Court in C.R.P. No.5455/89 the Courts below therefore were in error in taking the view that the applicants/objectors are not bound by the decree that is passed in favour of the appellant. 9. As far as the compromise decree is concerned, it is submitted by the learned Counsel Sri. C. B. Srinivasan that the said compromise was effected in the suit O.S.No.71/99 and it was on 28.6.99 long after the appellant filing the present suit in the year 1981 and just two months before a decree was passed in the suit filed by the appellant herein. Therefore, the said compromise decree also cannot in any way affect the case of the appellant. The Courts below, therefore were in error in ignoring all these factors. Therefore, the said compromise decree also cannot in any way affect the case of the appellant. The Courts below, therefore were in error in ignoring all these factors. As far as the sale deed executed in favour of the applicants in I.A.19 is concerned, the submission made is that the sale deed A5 is dated 6.7.90 i.e. long after the decree being passed by the trial Court in favour of the appellant in the year 1989 and therefore even said sale deed cannot take away the fruits of the decree earned by the appellant and the very fact that the sale deed A5 was executed on 6.7.90, shows that the transfer was effected during the pendency of the suit and as such, the applicant in I.A.19 is also bound by the decree that is passed in favour of the appellant. In support of the above submissions, learned Counsel Sri. C. B. Srinivasan placed reliance on a Division Bench ruling of this Court reported in ILR 1991 KAR 254 and as regards the appellant not placing any evidence before the Executing Court is concerned, learned Counsel referred to the decision of the Apex Court reported in (1981) 4 SCC 569 and submitted that when the admission of the parties and other materials on record amply prove point in issue, there can be no presumption raised against the person who failed to appear in Court. As regards the interpretation of the provisions of Order 21, Rule 97 of CPC is concerned, learned Counsel drew my attention to the decision of the Apex Court reported in 2003 AIR SCW 6458 to contend that the applicants cannot be considered as third parties or if it is possible to refer their title to the judgment debtor. 10. In the light of the aforesaid contentions put forward and decisions cited, learned Counsel for the appellant submitted that not withstanding the concurrent findings of the Courts below, the appellant has made out a case for interference by this Court in this second appeal. 11. On the other hand, learned Senior Counsel Sri. 10. In the light of the aforesaid contentions put forward and decisions cited, learned Counsel for the appellant submitted that not withstanding the concurrent findings of the Courts below, the appellant has made out a case for interference by this Court in this second appeal. 11. On the other hand, learned Senior Counsel Sri. Padmanabha Mahale for the respondents referred to the objections filed by the appellant to I.A.9 and I.A.19 and submitted that though the appellant had contended in the said objections that the applicants had colluded with the sons of the judgment debtor and played fraud on the decree holder, yet no further materials place by the appellant to prove the said allegations against the applicants. Details of the fraud are also not forthcoming in the objections filed by the appellant. Supporting the view taken by the Courts below submission is made to the effect, that the third party applicants i.e. AW1, AW2 have clearly deposed in their evidence about their independent right and title over the suit property in question by tracing right to the sale deed A5 and to the compromise decree A1. Therefore, the finding of the trial Court that the decree passed in O.S. No. 92/81 is not binding on the applicants, is correct view to be taken in the circumstances of the case and the said view cannot be termed as erroneous. As far as the observations made by this Court in C.R.P. No. 5455/89 is concerned, it is submitted that the sons of the judgment debtor were not allowed to be impleaded in the suit and therefore they had approached this Court in the aforesaid mentioned C.R.P and the order passed to the effect that the sons of the judgment debtor will not have their interest affected by the decree passed in the suit itself is sufficient to reject the case of the appellant herein and as the sons of the judgment debtor got the suit properties in partition, their interest remain unaffected despite the suit filed by the appellant being decreed in appellant’s favour. 12. The next submission put forward is that this appeal has been preferred against the concurrent finding of facts of the Courts below and even if the Courts below have committed error, an erroneous findings of facts will not permit this Court to interfere in second appeal. 12. The next submission put forward is that this appeal has been preferred against the concurrent finding of facts of the Courts below and even if the Courts below have committed error, an erroneous findings of facts will not permit this Court to interfere in second appeal. It was also submitted that there is also no scope for re-appreciation of evidence in second appeal and although another view is possible, the High Court should not interfere against the concurrent findings of facts, howsoever erroneous they may be. In support of the aforesaid submission, learned Counsel for the appellant referred to the decision rendered by the Apex Court which are reported in AIR 1996 SC 3521 , (1998) 6 SCC 423 , AIR 1999 SC 2213 , AIR 1999 SC 2216 , AIR 1963 SC 309 , AIR 1961 SC 1720 , 1998 (6) SCC 423 and AIR 1996 3521. 13. Apart from supporting his submissions from the aforesaid decisions, learned senior Counsel Sri. Padmanabha Mahale also contended that even for arguments sake if it is taken that the objectors have not proved the partition, yet there is evidence to indicate that the objectors in the possession of the respective suit items and the documents produced by the objectors like the licence, tax receipts etc., all go to show that the possession is with the objectors and in the absence of any rebuttal evidence being placed by the appellant and no document being produced by the Appellant, it is established that the objectors are in possession of the respective suit items and therefore they cannot be disposed except in accordance with law. Therefore, even on this ground, the present appeal is liable to be dismissed. 14. In the light of the arguments advanced by the respective Counsel and also after considering the entire material on record, I am of the view that in addition to the substantial question of law already framed, the following substantial questions of law also arises for consideration in this appeal. Whether the Courts below were justified in arriving at the conclusion the objectors are not bound by the decree passed in favour of the appellant, having regard to the provisions of the law contained in Order 21, Rule 35 and 97 to 102 of C.P.C? 15. The objectors have put forward three grounds for not accepting the case of the appellant. 15. The objectors have put forward three grounds for not accepting the case of the appellant. The first one is that they claim their rights independently to the judgment debtor. Secondly, it is their case that one of the objectors became the owner of one of the suit item by virtue of the sale deed dated 6-7-90 (A5) and the other objector places his right to the compromise decree i.e. A1 entered into between the parties in the suit O.S. No. 71/99 on 28.6.99. 16. The third attack by the objectors is that the sons of the judgment debtor became the owners by virtue of an oral partition. From the above contentions put forward, we will have to find out as to whether the decree passed in favour of the appellant does not bind the objectors. 17. As far as the theory of oral partition put forward by the objectors is concerned, it has to be stated at the outset that none of the sons of judgment debtor entered the witness box to support the said theory of the partition. In the application filed viz., I.A. 9 and I.A. 19, there is absolutely no whisper about partition having taken place and the sons of the judgment debtor becoming the owners of the suit items. It is only in their evidence the applicants AW1 and AW2 speak about the oral partition. Though there is a mention in the affidavit filed by one of the applicants that he was told that due to family partition, the suit properties had fallen to the share of sons of judgment debtor, there is no positive stand taken by the applicants in their application as well the affidavit filed that, infact a partition took place between the judgment debtor and his children in the year 1974 and further the application is silent as to the exact share that fell to the share of one of the sons of judgment debtor. The only document that is produced before the trial Court in respect of the partition is A34. The said document is extracted from the property register card and it is dated 24.4.98 and the relevant entry is dated 2.9.89 and it mentions that a partition took place between judgment debtor and his sons on 9.11.74. The only document that is produced before the trial Court in respect of the partition is A34. The said document is extracted from the property register card and it is dated 24.4.98 and the relevant entry is dated 2.9.89 and it mentions that a partition took place between judgment debtor and his sons on 9.11.74. Except this one document A34, there is no other material placed in proof of the partition having taken place and the suit properties having fallen to the share of the sons of judgment debtor. 18. The argument of the learned Counsel for the appellant that no partition took place in the family also gets sufficient support from the other material on record apart from the silence on the part of the applicants in mentioning about the partition in their application and affidavit. Even in the compromise decree that was passed on 28.6.99 in O.S. No. 71/99 wherein judgment debtor was given up and compromise was entered into only between the plaintiffs mentioned therein and the three sons of the judgment debtor, nowhere it is mentioned in the said compromise decree that the children of judgment debtor became the owners of the suit items by virtue of a partition having taken place in the family. If at all there was a partition on 9.11.74, the children of the judgment debtor who were the defendants in O.S. No. 71/99 would not have failed to state that important fact in the compromise petition. Apart from this, even during entire trial in O.S. No. 92/81 there is absolutely no mention by the judgment debtor that there was a partition in the family and that the suit item fallen to the share of his sons and therefore he is not in a position to comply with trial Court’s direction with regard to Specific Performance of the agreement of the sale. The matter went upto the Apex Court and no where in the entire proceedings, right from the date of the suit being instituted, till the matter was disposed of by the Apex Court, is there a mention by the judgment debtor that he had already parted with the suit properties in favour of his sons in a family partition. The matter went upto the Apex Court and no where in the entire proceedings, right from the date of the suit being instituted, till the matter was disposed of by the Apex Court, is there a mention by the judgment debtor that he had already parted with the suit properties in favour of his sons in a family partition. Under the said circumstances mere production of one document A34 with an entry therein itself cannot be stated as proof of partition having been taken place in the family and the suit items having fallen to the shares of three sons of judgment debtor. In fact, there is absolutely no material placed to show as to which of the suit item fell to the share of which of the sons of judgment debtor. Hence, the theory of partition put forward by the objectors cannot be accepted. 19. Coming to the observations made by this Court in C.R.P. 5455/89, the order passed by this Court reads as under: “Admittedly the petitioners are not impleaded as defendants. Therefore, any decree passed in the suit will not bind their interest. With this clarification, the C.R.P. is rejected.” 20. What is clear from the above order passed by this Court is that any order that is passed in the suit will not bind the interest of petitioners. This observation will not and cannot be construed as to mean that a person who is bound by the decree passed in favour of the appellant can take shelter under the aforesaid observations. The fact that the sons of the judgment debtor were not made parties and were not allowed to be impleaded itself implies that their interest will not be anyway affected as they were not parties to the suit. The question before us is not what is the interest the sons of the judgment debtor derived in respect of the suit properties, but whether the objectors before us are bound by the decree or not. I have already stated that the objectors have failed to prove that there was a partition and in the said partition, three sons of judgment debtor became the owners of the suit property. I have already stated that the objectors have failed to prove that there was a partition and in the said partition, three sons of judgment debtor became the owners of the suit property. No document is produced to show that after the partition, three sons of the judgment debtor got a particular item to his share and that the revenue entries were made in the names of each of the three sons in respect of the item that they got under this partition. The compromise decree is also silent as to the factum of partition having taken place in the family of the judgment debtor. 21. As far as the third aspect is concerned, one of the applicants have placed reliance on the sale deed dated 6.1.90 in his favour as per A5. The said sale deed was executed during the pendency of the suit filed by the appellant, is not in dispute if it is taken into the account the date of filing of the suit by the appellant and decree being passed in favour of the appellant on 28.9.89. Therefore, it was only after the decree was passed in favour of the appellant in the year 1989 long after that the sale deed was executed as per A5 in the year 1990 in favour of one of the applicants. This itself goes to show that the suit item which was the subject matter of the sale deed A5 was transferred to the applicant concerned after the decree was passed in the year 1989. Whether it can be said from the above events and further the proceedings in R.A.No. 39/90 which ended on 15.12.94 and the RSA preferred by the appellant in RSA 81/95 which ended in favour of appellant on 27.3.98 and finally the matter being resolved once and for all by the Supreme Court. As the matter was pending before the lower Appellate Court till it was decided in the year 1994, it becomes clear that during pendency of the proceedings that the sale deed A5 was executed. Therefore, whether it can be said that the person who got the property under the sale deed A5 is bound by the decree that is passed in favour of the Appellant. This takes us to the provisions of CPC. 22. Sub-rule (1) of Order 21, Rule 35 CPC reads as under: “35. Therefore, whether it can be said that the person who got the property under the sale deed A5 is bound by the decree that is passed in favour of the Appellant. This takes us to the provisions of CPC. 22. Sub-rule (1) of Order 21, Rule 35 CPC reads as under: “35. Decree for immovable property- (1) where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it have been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.” It is, therefore, clear from the aforesaid provision of law that if a person has succeeded in getting a decree for possession of certain property, he is entitled under this Rule to get an order from the Court for delivery of the property to him by any person bound by the decree. The expression “bound by the decree” has been commented upon by the learned author Mulla in his Code of Civil Procedure (13th Edition) by stating that a person who takes a transfer of property pendente lite is bound by the decree passed therein and can be evicted under this Rule. 23. Rule 102 of Order 21 is to the effect that nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment debtor has transferred the property after the institution of the suit, in which the decree was passed or to the dispossession of any such person. The explanation further makes it clear that the word “transfer” includes a transfer by operation of law. 24. The Apex Court, in the case of SILVERLINE FORUM PVT. LTD. VS. RAJIV TRUST, reported in AIR 1998 SC 1754 , has considered Rule 35, 97, 101 as well as 102 of Order 21 and held as follows: “.......The questions which executing Court is obliged to determine under R101, must posses to adjuncts. 24. The Apex Court, in the case of SILVERLINE FORUM PVT. LTD. VS. RAJIV TRUST, reported in AIR 1998 SC 1754 , has considered Rule 35, 97, 101 as well as 102 of Order 21 and held as follows: “.......The questions which executing Court is obliged to determine under R101, must posses to adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. ......... It is clear therefrom that executing Court can decide whether the resistor or obstructors is a person bound by the decree and he refuses to vacate the property. The question also squarely falls within the adjudicatory process contemplated in O.21, R 97 (2).. ..... Court can make the adjudication on admitted facts or even on the averments made by the resistor.....” 25. In another decision in the case of BRAHMDEO CHAUDHARY Vs. RISHIKESH PRASAD JAISWA, reported in 1997 AIR SCW 685, the Supreme Court dealing with the expression “any person” observed thus: “It is pertinent to note that the resistance and/or obstruction to possession of immovable property as contemplated by Order 21, Rule 97 CPC could have been offered by any person. The words ‘any person’ as contemplated by Order 21, Rule 97, sub-rule (1) are comprehensive enough to include apart from judgment-debtor or anyone claiming through him even persons claiming independently and who would, therefore, be total stranger to the decree.” 26. In another decision in the case of Aribam Ongbi Yaimabi Sarma Vs. Ningthoujam Ningol Noyan, reported in AIR 1974 Gauhati 4, dealing with Rule 102 of Order 21, it was observed thus: “8. In another decision in the case of Aribam Ongbi Yaimabi Sarma Vs. Ningthoujam Ningol Noyan, reported in AIR 1974 Gauhati 4, dealing with Rule 102 of Order 21, it was observed thus: “8. Rule 102 of Order 21 of the Code of Civil Procedure provides that nothing in Rules 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. It was held in Krishna Menon V. Ouseph Michael, AIR 1952 Trav. Co. 102: “The transfer contemplated by the Rule need not necessarily be by the judgment-debtor direct to the third party complaining of the dispossession by decree-holder. Any transfer of possession by the judgment-debtor directly or at his instance or for which he has been responsible would come within the scope of Rule 99.” 27. It is, therefore, clear from the aforesaid observations of the Gauhathi High Court that the transfer that is contemplated by Rule 102 need not necessarily be by the judgment debtor direct to the third party complaining of the dispossession but the decree-holder, but any transfer of possession by the judgment-debtor directly or at his instance or for which he has been responsible would come within the scope Rule 99. 28. Applying the aforesaid proposition of law to the case on hand, even from the very stand taken by the objectors, it is clear that one of the suit items was purchased by one of the objectors on 6.7.1990 i.e., subsequent to the suit being instituted by the appellant and before the culmination of the suit proceedings ultimately in the Supreme Court. It is needless to say that an appeal is a continuation of a suit. Therefore, it is clear from the very date of execution of the sale deed as per Ex.A5 that the said suit item was transferred during the pendency of the suit proceedings. Like was, even the compromise entered into as per Ex. A1 is dated 28.6.1999 and this was also very much during the pendency of the suit proceedings. Therefore, it is clear from the very date of execution of the sale deed as per Ex.A5 that the said suit item was transferred during the pendency of the suit proceedings. Like was, even the compromise entered into as per Ex. A1 is dated 28.6.1999 and this was also very much during the pendency of the suit proceedings. In other words, the two applicants rather became the owners of the suit item one through a sale deed and the other under a compromise decree but unfortunately, during the pendency of the suit proceedings in O.S. No. 92/1981. In view of the expression “any person” appearing in Rule 35 of Order 21 (1) covering the case of a person who takes a transfer of property pendente lite, the said person is bound by the decree passed therein. For this proposition, reliance is placed on a ruling of the Bombay High Court in the case of NARAYAN LAXMAN Vs. VISHNU VAMAN, reported in AIR 1957 Bombay 117. 29. It is, therefore, clear from the material placed by the objectors themselves that though they became the owners of the suit items, one under a sale deed (Ex.A5) and the other under a compromise decree (Ex.A1), but, what is common to the two transactions is that they took place during the pendency of the suit proceedings. In other words, the appellant having succeeded in the trial Court in getting a decree for Specific Performance and the said decree being challenged by judgment debtor before the lower appellate Court and finally in the Apex Court, it is established that the suit items were either purchased or came to the hands or one of the applicants under a compromise decree during the pendency of all these proceedings. 30. I have already held that the objectors have failed to place any material convincing enough to prove the factum of partition. Therefore, the conclusion to be drawn from the very own stand taken by the applicants themselves is that the possession of suit items by the respective objectors is referable to the judgment debtor only notwithstanding that the present objectors were not parties to the decree of Specific Performance granted in favour of the Appellant. In this regard, I also referred to the law laid down by this Court in the case of M/s. PARAMOUND INDUSTRIES Vs. C. M. MALLIGa, reported in ILR 1991 Kar 254. In this regard, I also referred to the law laid down by this Court in the case of M/s. PARAMOUND INDUSTRIES Vs. C. M. MALLIGa, reported in ILR 1991 Kar 254. A Division Bench of this Court dealing with Rules 35 (1), 97 to 101, 103 and 104 of Order 21, has laid down the following proposition of law: “13......... Therefore in any case, if it is established that his present possession of the immovable property against which a decree for possession is passed, is referable to the judgment debtor only or, in other words, he is not claiming independent right unconnected with the judgment debtor, even though he is not a party to the decree for possession, he must be deemed to be a party to it because, he has no independent right of his own and the present possession of the immovable property concerned in the decree is through the judgment debtor only, and as such, he would be bound by the decree.......” Applying the aforesaid proposition of law to the case on hand and for the reasons already stated and also having regard the meaning of the expression ”any person” contained in Order 21, Rule 35 (1) and Rule 102, and the interpretation given to the said expression by the Court. I am of the opinion that the objectors before us are bound by decree passed in favour of the Appellant as the transfer of said items in favour of the objectors took place during the pendency of the litigation. 31. As far as the submission made by the learned Senior Counsel Sri Padmanabha Mahale concerned no evidence being placed by the appellant and the appellant also not entering the witness box is concerned, no doubt it is only the objectors who have stepped into the witness box and they also produced innumerable documents in their favour. Nevertheless, in order to decide the question before us and more particularly as to whether the objectors are governed by the decree or not, the absence of the appellant placing any evidence does not, in my view affect the out come of the decisions particularly having regard to the very facts admitted by the objectors themselves. 32. Nevertheless, in order to decide the question before us and more particularly as to whether the objectors are governed by the decree or not, the absence of the appellant placing any evidence does not, in my view affect the out come of the decisions particularly having regard to the very facts admitted by the objectors themselves. 32. At the cost of repetition, it has to be stated that both the transfers in favour of the objectors viz., one by the sale deed and other by the compromise decree took place during the pendency of the suit proceedings which began in the year 1981 and culminated ultimately in the Apex Court. Therefore, when the very facts pleaded by the objectors and the documents produced by themselves give enough material to draw the conclusion in regard to the question involved, no infirmity can be found in the appellant not entering the witness box. To draw an analogy from every day experience when a thing can be seen with the naked eye in broad day light, one does not need the assistance of a candle light to see that thing. On the same analogy, in the instant case, when the two documents-A5 and A1, produced by the objectors confirm the transfer having taken place pendente lite, it does not require any further evidence to say that a person who takes transfer of the property pendente lite is bound by the decree passed therein. 33. As far as the submission made by the learned Senior Counsel for the respondents that even if, for the sake of argument, it is taken that the objectors have not been able to establish the factum of partition having taken place in the family of the judgement debtor, at, there is evidence to show that the objectors are in possession of the suit items and, therefore, they cannot be dispossessed except in accordance with law, is concerned, though the objectors say in their evidence that they have been in possession right from the year 1966 onwards, the very fact that the sale deed was executed in the year 1990 goes to show that the said contention put forward by the objectors does not carry much force behind it for the simple reason that it is under the sale deed Ex.A5 that possession is said to have been delivered. Therefore, the say of the objectors that they were in possession as far back as in the year 1966 stands defeated by the very documents produced by the objectors. As far as the other documents produced are concerned viz., licence and tax receipts, they are not the documents sufficient enough to take the view that the objectors are in possession of the suit items. 34. As far as the decision cited by learned Senior Counsel for the respondents concerning the scope of this Court in second appeal to interfere with the concurrent findings of facts is concerned, no doubt the Apex Court has held in innumerable cases and on umpteen times that interference is not called for in respect of concurrent findings of facts of the Courts below howsoever erroneous the said findings may be. The decisions referred to by the learned Senior Counsel in this regard lay down the said proposition of law. Nevertheless, it has to be borne in mind that though the High Court, in second appeal, cannot interfere with the concurrent findings of fact howsoever erroneous they may be, yet there are certain well recognised exceptions which permit interference even as against concurrent findings of facts and the said exceptions, in the words of the Apex Court in the case of KASHMIR SINGH Vs. HARNAM SINGH, reported in 2008 AIR SCW 2417, are the following: “As a general rule, the High Court will not interfere with the concurrent findings of facts unless the case comes within the well recognised exceptions viz., (i) the Courts below have ignored the material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to ‘decision based on no evidence’, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding’. 35. Applying the above ratio to the case on hand, in my considered opinion, exception No. (ii) referred to the above applies to the case fairly and squarely. Both the Courts below erred in not noticing the fact that the transfer of the suit items were effected in favour of respective objectors during pendency of the suit proceedings. 35. Applying the above ratio to the case on hand, in my considered opinion, exception No. (ii) referred to the above applies to the case fairly and squarely. Both the Courts below erred in not noticing the fact that the transfer of the suit items were effected in favour of respective objectors during pendency of the suit proceedings. Therefore, by virtue of the provision of law contained in Order 35, sub-rule (1) and Rule 102 of the CPC, the respective objectors, being the persons in whose favour the suit items were transferred, or bound by the decree that is passed in favour of the appellant. Therefore, the rulings referred to by the learned Senior Counsel for the respondents, as far as the scope of this Court in second appeal is concerned, are not applicable to the instant case in view of the case falling under one of the exceptions referred to by the Apex Court in KASHMIR SINGH’s case, Supra. 36. I, therefore, answer the substantial question of law raised for consideration by this Court at the time of admission as well as the one that is raised for consideration by me, in favour of the appellant. 37. As far as the view taken by the Courts below that the objectors have claimed their title to the suit properties independently of judgment debtor is concerned, I have already referred to the very documents produced by the objectors themselves and, in the absence of there being any material placed in proof of the partition having taken place between the judgment debtor and his three sons, the mere fact that, during pendency of the suit proceedings, the suit items changed hands and came to the hands of the objectors itself cannot be a ground to deny the appellant the fruits of the decree obtained by him after a long litigation, right upto the Apex Court. Therefore, it is pertinent to observe at this juncture that the very purpose of Rule 102 or Order 35 of the CPC is to ensure that the decree -holder is not deprived of enjoying the fruits of the decree even where a property changes hands by transfer through operation of law during pendency of the litigation. The Gauhathi High Court, in the case referred to by me earlier, after referring to the interpretation of the word “transfer” in Rule 102 of Order 35, has observed thus: “9. The Gauhathi High Court, in the case referred to by me earlier, after referring to the interpretation of the word “transfer” in Rule 102 of Order 35, has observed thus: “9. I am in respectful agreement with the above interpretation of the word “transfer” in Rule 102. If it were otherwise the object of the Rule could be very easily defeated by the judgment debtor by putting somebody in possession of the decretal land making it impossible for the decree-holder to obtain possession. In the instant case, after the decree in question was confirmed by the highest Appellate Court, it was the bounden duty of the judgment debtor Amu Singh to deliver possession of the land to the decree holder. Instead of doing that, he left the land in favour of the opposite party who was in league with him from before as is evident from the fact that once before the decree, she and Amu Singh had to bound down under Section 107 of the Cr.P.C. by a Magistrate at the instance of the petitioner.” 38. In the case on hand also, the judgment debtor himself did not whisper a word at any time right from the suit institution upto the Apex Court about the partition having taken place and the suit item being fallen to the share of his three sons. The compromise decree is totally silent as to how the three sons of the judgment debtor acquired title to the suit properties. Therefore, it has to be observed that, in the case on hand also, in view of the silence on the part of the judgment debtor and his three sons and their further conduct of not appearing before the executing Court to support the stand taken by the objectors in regard to the partition and there being no reference made to the partition said to have been effected on 9.11.1974 in any of the documents produced by the objectors viz., sale deed or the compromise decree, inference to be drawn is the decree granted in favour of the appellant was sought to be defeated. 39. In the light of the foregoing analysis of the law bearing on the point and the very admitted facts as placed by the objectors themselves, the Courts below could not have allowed the applications filed by the objectors by declaring them as the absolute owners of the respective suit items. 39. In the light of the foregoing analysis of the law bearing on the point and the very admitted facts as placed by the objectors themselves, the Courts below could not have allowed the applications filed by the objectors by declaring them as the absolute owners of the respective suit items. Therefore, I proceed the following order: The appeals are allowed. The judgments of the Courts below declaring the applicants as absolute owners of the suit items are set aside and I.A. Nos. 9 and 19 are dismissed. The appellant is entitled to proceed in accordance with law to get the decree executed having regard to the provisions of law contained in Order 21, Rule 35, sub-rules (1) to (3) and get the objectors evicted from the suit properties in accordance with law.