Suffiyan Ahmed Millan Hussen Shah v. Sulochana Vasant Bhavsar
2012-09-07
R.M.SAVANT
body2012
DigiLaw.ai
ORDER 1. The above petition arises out of an order passed in the execution proceedings and can be said to exemplify the manner in which the execution of the decree in question is sought to be stalled for one reason or the other. 2. The respondent No. 1 is the decree holder who has a decree for specific performance in her favour, which has been confirmed by this Court in Second Appeal No. 761 of 1997 by order dated 14th February, 2006. The said decree was put into execution and upon receipt of the notice the present petitioners and the Judgment Debtor Nos. 4 to 6 filed an application Exh. 19 objecting to the execution of the decree on the grounds mentioned in the said application. The executing court held that since the objections were filed on receipt of the notice under Order 21 Rule 22 of the Civil Procedure Code and since no warrant of possession was issued nor an application under Order 21 Rule 97 was filed, it was premature on the part Judgment Debtor Nos. 4 to 6 to file the said application. The executing court, therefore, observed that the application is liable to be rejected on the said ground. However, after so observing, the executing court also observed that the Judgment Debtor Nos. 3 to 5 have purchased the property during the pendency of the suit, which fact was not disputed by the judgment debtors. The executing court has further observed that the provisions of Order 21, Rule 102 cannot be invoked by a person to whom the judgment debtor has transferred the property after institution of the suit in which the decree is passed. The executing court further observed that a reading of the said provision makes it clear that the person who has purchased such property during the pendency of the suit, cannot resist the execution of the decree as he has stepped into the shoes of the judgment debtor and whatever order passed against the judgment debtor is binding on the purchaser of the suit property, which he has purchased during the pendency of the suit. As indicated above, the executing court has rejected the said application by order dated 25th November, 2008. 3.
As indicated above, the executing court has rejected the said application by order dated 25th November, 2008. 3. It appears that after the said order dated 25th November, 2008, the decree holder applied for possession warrant being issued as the Bailiff who was appointed to take possession of the suit property had intimated to the executing court his inability to take possession. The decree holder, therefore applied for issuance of a fresh possession warrant, which came to be allowed by the executing court by order dated 5th April, 2011. On issuance of the said fresh possession warrant, the instant application Exh. 59 came to be filed, seeking setting aside of the said possession warrant in respect of the suit property. The objections were on the same lines as the objections raised vide application Exh. 19 pursuant to the notice under Order 21 Rule 22 of the CPC. The said objections have been rejected on the selfsame grounds as the objections contained in Exh. 19, namely that having regard to the provisions of Order 21 Rule 98 a purchaser pendent lite cannot invoke the provisions Rules 98 to 102 of Order 21. 4. The principal contention of the learned counsel appearing for the petitioner is that the executing court was obligated to consider the objections in the same manner as in a suit. In my view, the said contentions cannot be countenanced in view of the well settled position in law that the purchaser from the judgment debtor during the pendency of the suit cannot avail of the Rules 97 to 102 of Order 21. 5. The objections of the judgment debtor i.e. the petitioner herein have been exhaustively dealt with in the order passed on Exh. 19. Though the Application Exh. 19 was rejected on ground that same was premature, the said reasons have been reiterated in the impugned order as the objections were in the same manner and to the same extent as in Exh.19. In that view of the matter, no case for interference is made out. The writ petition is accordingly dismissed. Petition dismissed.