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2013 DIGILAW 794 (ALL)

Mahendra Pratap v. Ram Bali

2013-03-12

SIBGHAT ULLAH KHAN

body2013
JUDGMENT Sibghat Ullah Khan,J. 1 Heard Sri Ramendra Asthana, learned counsel for the petitioner and Sri P.S. Sengar, learned brief holder of Sri D.S. Lal, learned counsel for plaintiff decree holder respondent No.1, who has appeared through caveat. 2. O.S. No.134 of 1982 was instituted by Rambali against Rampati since deceased for specific performance of an agreement for sale deed dated 04.09.1981. The suit was dismissed on 15.09.1988, however the said decree was reversed in appeal (Civil Appeal No.5 of 1985), which was allowed on 23.02.1999 and suit for specific performance was decreed. Against the said decree, Second Appeal No.601 of 1999 was filed in this court by Rampati in which execution of the decree was stayed through stay order dated 28.04.1999. Meanwhile, decree holder filed execution application in the form of Case No.11 of 1999. In the said execution case, objections were filed by the petitioner claiming that defendant Rampati had sold the property to his wife, Smt. Champa Devi, respondent No.2 in this writ petition on 05.10.1982 and Smt. Champa Devi sold the property to the petitioner on 23.01.1995 hence he must be impleaded in the execution and execution cannot proceed against them. He also pleaded that the notice under Order XXI Rule 22, C.P.C. should have been given to him. 3. The second appeal was dismissed in default on 18.01.2008 but restored on 18.03.2011. The second appeal was got dismissed as withdrawn through order dated 27.04.2011 passed on the application filed on 25.04.2011. Thereafter, the petitioner and proforma respondents filed application for impleadment in the second appeal on 05.05.2011, which was rejected on 23.05.2011 holding that they were not necessary parties. On the same date, i.e. 05.05.2011, they also field recall/ restoration application seeking to recall the order dated 27.04.2011, dismissing the appeal as withdrawn. No order has yet been passed thereupon but in view of order dated 23.05.2011 rejecting impleadment, the said application is also likely to be dismissed. The Executing Court/ Additional Civil Judge (S.D.), Mirzapur rejected the objections of the petitioner through order dated 21.04.2012 in Execution Case No.11 of 2009. Against the said order, petitioner filed Misc. Civil Appeal No.49 of 2012. A.D.J., Court No.4, Mirzapur dismissed the appeal on 14.12.2012 hence this writ petition. 4. Objections before the Executing Court were filed by the petitioner and respondents No.4 to 6 who claimed to have purchased the property from Champa Devi in 1995. Against the said order, petitioner filed Misc. Civil Appeal No.49 of 2012. A.D.J., Court No.4, Mirzapur dismissed the appeal on 14.12.2012 hence this writ petition. 4. Objections before the Executing Court were filed by the petitioner and respondents No.4 to 6 who claimed to have purchased the property from Champa Devi in 1995. Respondent No.2 in this writ petition is Champa Devi, wife of late Sri Rampati and respondent No.3 is Ashok, son of late Sri Rampati. Smt. Champa Devi filed an application before the Executing Court to the effect that neither she had executed any sale deed in favour of petitioner and proforma respondents nor she had filed any vakalatnama in the case and that she had not filed any objection in the execution. Her application was allowed by the Executing Court on 06.04.2012 holding that the objection would not be treated to be on behalf of Champa Devi. 5. The orders were passed on the application of the petitioner and proforma respondents filed under Order XXI Rule 23, Sections 47 & 151, C.P.C. The case of the petitioner and proforma respondents was that they were bona fide purchasers without notice. 6. By virtue of Section 52 of Transfer of Property Act and Section 19(b) of Specific Relief Act decree is binding upon the petitioner and proforma respondents. The agreement was registered hence petitioner and proforma respondents cannot say that they were bona fide purchasers without notice. 7. Moreover impleadment application of the petitioner and proforma respondents has been rejected by this court holding that they have no right to be impleaded or heard. 8. Petitioner and proforma respondents could by maximum have a right of hearing when main matter (suit and appeals) was subjudice. Firstly, in the execution they have no right to be impleaded. Secondly, they cannot have anything to say against execution as in view of the aforesaid provisions of law they are bound by the decree. 9. Writ Petition is therefore dismissed.