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2024 DIGILAW 182 (AP)

B. M. Lakshmi Narayana v. V. Bhaskar

2024-02-02

R.RAGHUNANDAN RAO

body2024
ORDER R. Raghunandan Rao, J. - The petitioner herein is said to have purchased the petition schedule property from the 5th respondent under a registered deed of sale dated 04.08.2021 registered as a document No.2402 of 2021 and had been in possession of the said property since then. 2. The petitioner had subsequently come to know that the suit schedule property was the subject matter of a deed of sale dated 23.02.2015, in E.P.No.51 of 2012 in O.S.No.24 of 2001 in the Court of the Additional Senior Civil Judge, Chittoor. The petitioner upon coming to know of the said sale, when he was sought to be dispossessed from the said property, had approached the executing Court by way of E.A.No.44 of 2015 under Order 21 Rules 97, 98 & 101 Read with 47 of Civil Procedure Code, 1908 to set aside the deed of sale dated 23.02.2015 which had earlier been executed in favour of the respondents. 3. This petition of the petitioner, was rejected, at the threshold, by the executing Court, by a docket order dated 09.10.2023. The executing Court held that it would not have any jurisdiction to set aside the deed of sale executed on 23.02.2015 and the same had been executed in pursuance of the decree passed in O.S.No.24 of 2001 and in the proceedings initiated in E.P.No.51 of 2012 as well as the orders passed by this Court in C.R.P.No.1489 of 2023. 4. Aggrieved by the said order, the petitioner has approached this Court by way of the present Civil Revision Petition. 5. Sri T.C. Krishnan, learned counsel for the petitioner would submit that the said application could not have been rejected, at the threshold, as there were various disputed questions of fact which should have been determined before any conclusion was drawn by the executing Court. He further submits that the provisions of Section 47 of Civil Procedure Code, 1908 read with Rules 97, 98 & 101 of Order 21 of Civil Procedure Code, 1908 makes it clear that all questions which are required to be ascertained in an execution petition would have to be determined in accordance with these provisions and should not be treated merely as provisions authorizing filing of an application but should be treated as provisions which provided for a suit to be filed and any application filed under these provisions should be treated as a suit. 6. 6. This Court, in course of the hearing, had raised a question as to whether Rule-102 of Order 21 of Civil Procedure Code, 1908 precludes the petitioner to move such applications as Rule-102 prohibits such applications being filed by a pendente lite purchaser. 7. Sri T.C. Krishnan, learned counsel for the petitioner relies upon the Judgment of the Hon'ble Supreme Court of India in the case of Jini Dhanrajgir & Anr Vs. Shibu Mathew & Anr. in Civil Appeal Nos.3758 -3796 of 2023. He would further submit that in the said case, the respondents herein had raised the question of bar under Rule 102 of Order 21 of Civil Procedure Code, 1908 and the same was negatived by the Hon'ble Supreme Court of India which held that in such circumstances the said bar would not operate as various questions of fact need to be gone into. He would submit that this Judgment would apply to the present facts of the case and that the said bar would not operate in the present case. 8. Smt. S. Pranathi, learned counsel for the respondents would submit that the said Judgment can be distinguished on facts and in any event the petitioner has only sought a direction to the executing Court to set aside the deeds of sale executed by the Trial Court without seeking any relief against the Judgment/Decree on the basis of which the deed of sale had been executed. 9. Sri T.C. Krishnan, learned counsel for the petitioner would also submit that the suit, on the basis of which the earlier deed of sale had been executed in the year 2015, was filed against the respondents 2 to 5 herein while the respondents 2 to 4 did not have any title to the property and as such, the petitioner cannot be treated as a person who is a pendente lite purchaser. 10. A perusal of the order of the executing Court shows that the respondent No.1 herein, who is the decree holder, had filed a suit against the respondents 2 to 5 for specific performance of an agreement of sale and the said suit is decreed. After the decree, E.P.No.51 of 2012 was filed for execution of the decree and deed of sale was executed by the Court, in favour of the decree holder, on 23.02.2015 and the said document was registered in the Registration Office. After the decree, E.P.No.51 of 2012 was filed for execution of the decree and deed of sale was executed by the Court, in favour of the decree holder, on 23.02.2015 and the said document was registered in the Registration Office. Thereafter, E.A.No.44 of 2015 was filed for obtaining possession of the said property. 11. At that stage, the petitioner herein filed a claim petition contending that the said property had been sold by the 5th respondent to him under a registered deed of sale dated 04.08.2021, registered as document No.2402 of 2021 for valid consideration of Rs.12,00,000/- and that he has been in possession of the property since then. On the basis of these averments, the petitioner had filed the claim petition seeking the relief of setting aside the deed of sale, dated 23.02.2015, executed in E.P.No.51 of 2012, and for a declaration that the petitioner had rights over the suit schedule property by virtue of the registered deed of sale dated 04.08.2021. 12. A perusal of the above fact reveals that O.S.No.24 of 2001 had been decreed and the deed of sale had been executed in pursuance of the decree in that suit. The petitioner herein had purchased the property subsequent to the registration of the deed of sale even while E.P.No.51 of 2012 was still pending before the Trial Court. In such circumstances, this Court would have to hold that the purchase of the property by the petitioner is a pendente lite purchase and the provisions of Rule-102 prohibiting pendente lite purchasers from disputing the title to the property would have to be applied. 13. The Hon'ble Supreme Court, in the case cited by Sri T.C. Krishnan, learned counsel for the petitioner had held that in the normal course, the bar under Rule-102 of Order 21 of Civil Procedure Code would apply. However, the Hon'ble Supreme Court took the view that in the peculiar facts and circumstances of the case before it, there is a need to ascertain facts as to whether that the said rule would be applicable or not. In those circumstances, the Hon'ble Supreme Court of India had permitted further enquiry in the matter. However, the Hon'ble Supreme Court took the view that in the peculiar facts and circumstances of the case before it, there is a need to ascertain facts as to whether that the said rule would be applicable or not. In those circumstances, the Hon'ble Supreme Court of India had permitted further enquiry in the matter. In such a situation, it cannot be held that the Judgment of the Hon'ble Supreme Court of India had laid down a rule that the pendente lite purchasers can also refer applications under the relevant provisions, despite the bar under Rule-102 in Order 21 of the Civil Procedure Code, 1908. 14. In the circumstances, this Court does not find any reason to interfere with the orders of the Trial Court. 15. Accordingly, this Civil Revision Petition is dismissed. 16. Needless to say, this order shall not preclude the petitioner from availing of such remedies as may be available under the law. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.