Judgment :- Anand Byrareddy, J: Heard Shri Padmanabha Mahale, learned Senior Advocate, appearing for the Counsel for the petitioner and the learned Counsel for respondent No.1. 2. The brief facts as would be relevant for the consideration of this writ petition are as follows: The petitioner is a Co-operative Society and a Government of India undertaking. It is stated that respondents 2 to 4 were due to their banker – M/s. Vysya Bank, a large sum of money. Since the Bank was seeking to take coercive measures to recover the amount, respondents 2 to 4 are said to have entered into a Memorandum of Understanding with the petitioner as on 6.7.2001, whereby the petitioner agreed to meet the liability of the Bank and discharge the loan to the extent of 50.00 lakh on behalf of respondents 2 to 4 and the petitioner in turn, would have a charge on the schedule property. Further, the agreement indicated that the petitioner was entitled to 5000 Sq.ft. area, with a right to construct a building by the petitioner at its cost, consisting of ground floor of 3500 Sq.ft. of super built up area and Mezzanine floor of 1500 Sq.ft. area, on a long term of 90 years at the agreed rent in terms of the Memorandum of Understanding. It was also agreed that the petitioner would be entitled to interest at the rate of 22% from respondent No. 1, on Rs.50.00 lakhs paid to the aforesaid Bank, from 6.7.2003 till the date of handing over of possession of 5000 sq.ft. of land to the petitioner. It was also agreed that steps such as submission of plan for sanction to the Competent Authority and commencement of construction in accordance with the plan and such other sanctions, as may be necessary, would be obtained by the respondents. It was agreed that any dispute arising between the parties would be referred to arbitration under the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’ for brevity). In the face of this agreement, it transpires that, respondent no.3 with an intention to deprive the petitioner of the subject property, had gifted one-third of the property in favour of the first respondent, under a gift deed dated 10.12.2001. This was not brought to the knowledge of the petitioner and was done without the knowledge of the petitioner. In the face of this agreement, it transpires that, respondent no.3 with an intention to deprive the petitioner of the subject property, had gifted one-third of the property in favour of the first respondent, under a gift deed dated 10.12.2001. This was not brought to the knowledge of the petitioner and was done without the knowledge of the petitioner. The petitioner after having learnt that the respondents were scouting for lucrative offers from third-party purchasers in respect of the schedule property notwithstanding the above said arrangement, the petitioner was constrained to invoke Section 9 of the Act, seeking an order of injunction against the respondents from dealing with the schedule property. An interim order was granted by the City Civil Court, Bangalore, in case No. AA 36/1952 initiated by the petitioner, and the order was confirmed after hearing both the parties as on 5.3.2003. The petitioner thereafter approached this Court seeking appointment of a sole Arbitrator for resolution of the dispute under the provisions of the Act and the arbitration proceedings commenced before the appointed Arbitrator on 20.4.2005. Respondents 2 to 4, participated in the proceedings. Ultimately, an award was passed in favour of the petitioner on 20.4.2005. This was challenged before a competent Court in an arbitration suit in AS 23/2005 and the same was dismissed, ultimately, by an order dated 22.1.2007. The petitioner thereafter learnt that even during the pendency of these proceedings, the respondents had executed a registered sale deed dated 25.6.2008 and sold the entire property in favour of one M/s. Rajesh Exports. The petitioner thereafter had initiated execution proceedings before the City Civil and Sessions Judge, Bangalore, in execution Case No. 1287/2008 as on 4.8.2008, to enforce the award. Respondents 2 to 4 had challenged the order of the Civil Court dated 22.1.2007, passed in AA 23/2005 before this Court by way of an appeal in MFA 8634/2007. This Court dismissed the appeal as on 24.9.2008 after the matter was contested on merits. Thereafter, the first respondent is said to have filed an application under Order XXI, Rule 97 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’ for brevity) before the executing Court and sought for dismissal of the execution petition claiming himself to be an obstructor, as on 2.3.2009. The petitioner had opposed the said application. Thereafter, the first respondent is said to have filed an application under Order XXI, Rule 97 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’ for brevity) before the executing Court and sought for dismissal of the execution petition claiming himself to be an obstructor, as on 2.3.2009. The petitioner had opposed the said application. However, the Court below having allowed the application has formed the opinion that the matter requires to be inquired into and that respondent no.1 ought to be afforded an opportunity to participate in the execution proceedings and has posted the matter for inquiry under Order XXI, Rule 97 of the CPC. It is this which is challenged in the present petition. 3. The learned Senior Advocate Shri Mahale would point out that there is no dispute insofar as the relationship of the parties or the sequence of events are concerned and he would submit that in terms of Order XXI Rule 102, Rules 98 and 100 of the CPC, shall not 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 such person. In the instant case, there being no dispute that respondents 2 to 4 have transferred the subject property, pendente lite, in favour of one M/s. Rajesh Exports and when there is a finality to the award, the question of respondent No. 1 invoking Order XXI Rule 97 of the CPC was wholly inapposite to the said Rule, which the executing Court has completely overlooked. Secondly, he would point out that the award under the Act is final as between the parties and the award shall be in force under the CPC in the same manner as if it were a decree of the Court as per Section 36 of the Act. Secondly, he would point out that the award under the Act is final as between the parties and the award shall be in force under the CPC in the same manner as if it were a decree of the Court as per Section 36 of the Act. Further, insofar, insofar as the alleged transfer by a deed of gift in the year 2001 as between the father of the first respondent and the second respondent, it is pointed out that Section 128 of the Transfer of Property Act, 1882 (hereinafter referred to as ‘the TP Act’ for brevity) provides that where a gift consists of the donor’s whole property, the donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein. It is also pointed out that though the second respondent has transferred one-third of the subject property in favour of respondent No. 1, it was the whole property which was held by him and therefore, the Section squarely applied and notwithstanding that the first respondent claims to be a donee, he was equally liable, in the stead of respondent No. 2, having regard to the law as spelt out in Section 128 of the TP Act. Further, respondents 2 to 4 had, in the first instance, raised objections as regards the enforceability of the award by way of an appeal before this Court in MFA 8634/2007 and the said appeal was unconditionally withdrawn as per the judgment of this Court dated 24.9.2008. It is hence contended that the admitted facts and circumstances and the position of law being what it is, the executing Court proceeding to hold that an enquiry would yet be necessary to address the claim of respondent No. 1, who has no further interest in the subject property and the subject property having been admittedly sold in favour of M/s. Rajesh Exports, respondent No. 1 would have no voice in the proceedings and the executing Court was misdirected in allowing the application under Order XXI, Rule 97 of the CPC in proceeding to hold that an inquiry ought to be conducted. 4. While the learned Counsel for the respondent No. 1 would make an effort to sustain the order impugned. 4. While the learned Counsel for the respondent No. 1 would make an effort to sustain the order impugned. While he is hard put to explain as to the specific interest that he has in the property in claming that he could yet maintain an application under Order XXI, Rule 97 of the CPC. The learned Counsel would assert that the gift deed was made in the year 2001 which was even prior to the initiation of arbitration proceedings and therefore, it could not be said that the transfer was pendente lite and would contend that the proceedings having been initiated in the year 2003, seeking reference to arbitration, respondent No. 1 was a necessary party to those proceedings and the sale deed being of the year 2008, has again entailed that the respondent No. 1 be made a party atleast in the execution proceedings and therefore, in the result, the executing Court having passed the impugned order is in accordance with law. 5. The learned Senior Advocate, by way of reply, would point out that the transfer in favour of respondent No.1 by virtue of the gift deed was certainly a fraudulent transfer as contemplated under Section 53 of the TP Act. Since the second respondent was fully aware that the property was encumbered and a large sum of money was paid by the petitioner to ensure that the land would be offered to it for construction and occupation, the willful transfer in favour of respondent No.1 was therefore, a fraudulent transfer and could not be enforced and the respondent No. 1 would have no voice in the further proceedings, on the admitted circumstance that a sale deed has been executed in the year 2008 and he has divested himself of all interest. 6. 6. Given the above facts and circumstances, it is clear that respondent No.1 who claims to have acquired a share in the property by way of gift to the extent of one-third, is immaterial, since the donor had transferred his entire interest in the property in favour of respondent No.1 and respondent No. 1 therefore stepped into the shoes of the respondent No. 2 and notwithstanding the nomenclature that the parties have given to the said document, is categorical in its terms and the agreement for reference to arbitration also being evident and the matter having been referred to arbitration, has attained finality by virtue of proceedings referred to hereinabove. Hence, in the face of the pending proceedings and the admitted transfer of the property in favour of a third-party namely, M/s Rajesh Exports, even during the pendency of the proceedings, is clearly hit by Rule 102 of Order XXI, which categorically lays down that the relevant Rules would not be applicable to a transferee pendente lite, in view of which, the application of respondent No.1 was not maintainable. Insofar as the contention that the respondent having acquired one-third share in the property in the year 2001, the acquisition was not pendente lite and therefore, it could not be said that the transfer was hit by Rule 102 of Order XXI, of the CPC and the insistence that he was a necessary party to the proceedings, is concerned, this contention cannot be countenanced since, as is evident, the Memorandum of Understanding under which a substantial sum of money was paid to the second respondent was prior to the said transfer of gift. If respondent No. 2 has acted in violation of the Memorandum of Understanding, without notice to the petitioner, of the intention to effect a transfer in favour of respondent No. 1, the obvious intention was to ensure that the petitioner was kept out of the property and therefore, a dispute having been raised, it could not be said that transfer would fall foul of the lis between the parties and this was a contention that has been raised in arbitration and therefore, the transfer would be voided by virtue of the challenge to the failure of the respondents to abide by the Memorandum of Understanding. This having resulted in an arbitration award, while respondent No. 1 has divested himself of the interest in the property by the sale of the year 2008, it cannot even now be said that in spite of objections raised by respondent No. 1 that he is a necessary party to the proceedings, even if he is a necessary party to the proceedings, the said respondent again having willfully acted by executing the sale deed in favour of a third-party cannot be said to be consenting to a third-party purchase or a third-party to the transfer. He was the son of respondent No. 2 and apparently aware of the transfers that had taken place earlier and therefore, the intention of the respondents in executing the gift deed and thereafter the sale deed is not honourable and the award having been passed would necessarily have to be executed and taken to its logical conclusion. The executing Court was in error in holding that an inquiry was necessary to address the application of respondent No. 1. And in this view of the matter, having regard to the fact that the award would have the force of a decree, it requires to be executed in terms as spelt out and therefore, the need felt by the executing Court for an enquiry is not tenable and hence, the petition is allowed. Annexure-C is quashed.