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2025 DIGILAW 205 (TS)

J. Venkateshwar Reddy v. Sudi Bala Reddy

2025-04-01

P.SREE SUDHA

body2025
JUDGMENT : P.SREE SUDHA, J. This appeal suit is filed against the Order dated 10.02.2020 in E.A.No.20 of 2015 in E.P.No.176 of 2015 in O.S.No.60 of 2006, passed by the learned II-Additional District Judge, at L.B.Nagar, Ranga Reddy District. 2. The appellants/claim petitioners are the third parties to the suit. They are claiming the subject property basing on the agreement of sale dated 06.07.2005 executed in their favour by the original owner i.e., respondent No.2/JDr. A decree of specific performance granted in favour of the appellants/claim petitioners herein against the respondent No.2/JDr in O.S.No.297 of 2006 dated 25.06.2008. Pursuant to the said decree, the respondent No.2/JDr and her family members have executed a registered sale deed vide document No.2332/2013 dated 13.03.2013 in favour of the appellants/claim petitioners and thus they claim that they have become the absolute owners and possessors of the subject property. 3. Whereas, the respondent No.1/DHr i.e., subsequent purchaser, had obtained the agreement of sale for the same subject property from the respondent No.2/JDr on 23.10.2005, which was culminated in filing a suit for specific performance in O.S.No.60 of 2006, that resulted in the decree levied in execution. 4. Appellants herein have filed a claim petition before the executing Court under Order XXI Rule 97 CPC to dismiss the execution petition filed by the respondent No.1/DHr. The respondent No.1/DHr had also filed the counter in the said petition. The executing Court after conducting enquiry vide Orders dated 10.02.2020, dismissed the claim petition filed by the appellants herein in E.A.No.20 of 2015 in E.P.No.176 of 2015, holding that the suit instituted by the appellants is later in point of time and the sale deed dated 13.03.2013 was obtained after the degree in favour of respondent No.1/DHr. Therefore, the claim petition filed by the appellants is not maintainable as they are the purchasers during the pendent lite and they are not bona fide purchasers for value. Aggrieved by the said Order, appellants/claim petitioners preferred the present appeal suit. 5. A list of important dates and events is table hereunder: Date Event Remarks 06.07.2005 Agreement of sale by respondent No.2 in favour of appellants for an extent of Acs. Aggrieved by the said Order, appellants/claim petitioners preferred the present appeal suit. 5. A list of important dates and events is table hereunder: Date Event Remarks 06.07.2005 Agreement of sale by respondent No.2 in favour of appellants for an extent of Acs. 2.20 gts in Sy.No.665 Ex.A6 23.10.2005 Agreement of Sale by respondent No.2 in favour of respondent No.1 Ex.R1 16.01.2006 Gift deed by respondent No.2 in favour of K.Radhika for an extent of 0.25 gts in Sy.No.665 Ex.A8 16.01.2006 Gift deed by respondent No.2 in favour of P.Devi for an extent of 0.25 gts in Sy.No.665 Ex.A9 16.01.2006 Gift deed by respondent No.2 in favour of A.Suresh for an extent of 0.25 gts in Sy.No.665 Ex.A10 16.01.2006 Gift deed by respondent No.2 in favour of A.Balraj for an extent of 0.25 gts in Sy.No.665 Ex.A11 17.02.2006 O.S.No.297 of 2006 is filed by appellants against respondent No.2 and the donees for reliefs of specific performance of agreement of sale dated 06.07.2005 and cancellation of the four gift deeds Ex.A16 06.02.2006 O.S.No.60 of 2006 filed by respondent No.1 for specific performance of agreement of sale dated 23.10.2005 Ex.R7 25.06.2008 Decree of specific performance of agreement of sale dated 06.07.2005 and also for cancellation of four Gift Deeds dated 16.01.2006 in O.S.No.297 of 2006, in favour of appellants and against the respondent No.2 and the donees under the gift deeds. Ex.A5 23.06.2011 Decree of specific performance granted in O.S.No.60 of 2006 Admitted fact and appearing from the pleadings. 28.03.2012 Execution Petition is filed in O.S.No.60 of 2006 13.03.2013 Sale deed executed by respondent No.2 and family members in favour of the appellants for the land of Acs.2-20 gts in Sy.No.665, subject matter of O.S.No.297 of 2006. 6. The learned Counsel for the appellants contended that the executing Court did not frame proper points for consideration. Admittedly, there are two decrees by two competent Courts of law and the point that would arise for consideration is as to whether the decree in favour of the appellants herein will have precedence over the decree in favour of the respondent No.1 in the matter of allowing the claim petition. The agreement of sale in favour of the claim petitioner was dated 06.07.2005 and the agreement of sale in favour of the respondent No.1 was dated 23.10.2005. The agreement of sale in favour of the claim petitioner was dated 06.07.2005 and the agreement of sale in favour of the respondent No.1 was dated 23.10.2005. It is well settled that a decree passed by the competent Court of law continues to be a decree enforceable in law and the decree will not lost its significance, importance and executability unless it is set aside in accordance with law. In any event, the respondent No.1 has not challenged the decree obtained in favour of the appellants herein. He also contended that merely because there is some delay in execution, it cannot be said that the decree was not enforceable or not valid. Further, the payment of additional amount would show that in order to buy peace, appellants herein parted with additional amounts and got the sale deed executed by all other family members and third parties. Merely because the sale deed was got executed by other family members, it cannot be said that the sale deed obtained by the appellants is not bona fide. Hence, the sale deed under Ex.A1 dated 13.03.2013, vide document No.2332 of 2013, executed pursuant to and in furtherance of the decree in O.S.No.297 of 2006 dated 06.02.2006 is valid and binding on all the respondents herein. 7. The learned Counsel for the respondent No.1 in his arguments stated as follows: a) In agreement between the appellants and respondent No.2 herein, an ante-dated agreement of sale brought into existence only to defeat the case and claim of the respondent No.1. b) The said O.S.No.297 of 2006 was filed 11 days after O.S.No.60 of 2006 filed by respondent No.1 herein seeking specific performance of the agreement of sale dated 23.10.2005. c) The said O.S.No.297 of 2006 was an ex-parte decree, whereas, the respondent No.2 contested O.S.No.60 of 2006 (filed by the respondent No.1) by tooth and nail. d) The appellants herein, despite having an ex-parte decree, did not take any action for more than 5 years to get a sale deed in their favour. On the contrary, the appellants and respondents in collusion executed the sale deed dated 13.03.2013 after the respondent No.1 herein filed an E.P in 2012 for execution of decree in O.S.No.60 of 2006. d) The appellants herein, despite having an ex-parte decree, did not take any action for more than 5 years to get a sale deed in their favour. On the contrary, the appellants and respondents in collusion executed the sale deed dated 13.03.2013 after the respondent No.1 herein filed an E.P in 2012 for execution of decree in O.S.No.60 of 2006. e) There is no whisper is pleadings or evidence in O.S.No.60 of 2006 by respondent No.2 herein about the alleged gift deeds, agreement of sale of the claim petitioner dated 06.07.2005 or about the payment of sale consideration under the agreement of sale dated 06.07.2005 or about the additional payment of Rs.25,00,000/- in 2013 by appellants to respondent No.2. f) The array of parties to AOS and sale deed between the appellants and respondent No.2 are completely different and there is no explanation about the same. g) There is no whisper about the advance sale consideration paid under AOS of 2006 in the sale deed of 2013 between the appellants and respondent No.2. h) Most importantly, even in the present grounds of appeal as well as the arguments advanced by the appellants, there is no explanation or justification given with regard to the difference of parties and the amount paid/received in the AOS of 2006 vis-à-vis sale deed of 2013. Learned Counsel for the respondent No.1 further stated that the trial Court has rightly appreciated the evidence on record as well as the depositions of the parties concerned and after due consideration has passed a Judgment and decree dated 10.02.2020, dismissing the claims of the appellants by giving reasoning and thus the present appeal suit is liable to be dismissed with exemplary costs on the appellants for resorting to vexatious litigation in collusion and connivance with the respondent No.2 herein, who has remained ex-parte even before this Court. 8. The executing Court is of the view that, as the sale deed was obtained by the appellants during the pendency of the suit filed by respondent No.1/DHr in O.S.No.60 of 2006, the appellants are not entitled to file the claim petitions under Order XXI Rule 97 CPC. 8. The executing Court is of the view that, as the sale deed was obtained by the appellants during the pendency of the suit filed by respondent No.1/DHr in O.S.No.60 of 2006, the appellants are not entitled to file the claim petitions under Order XXI Rule 97 CPC. Then the question arises is that “whether a third party to the suit, who is in possession of the property can resist the execution and make application under Order XXI Rule 97 of CPC.” The said question was already settled by the Hon’ble Apex Court in the case of Har Vilas Vs. Mahendra Nath and others, , [ 2011 (15) SCC 377 ] in which it was held as follows: “a third person claiming to be in possession of the property forming the subject-matter of decree in his own right can resist delivery of possession even by filing an objection under Order 21 Rule 97 of the Code of Civil Procedure in the executing court itself and if that is done, the objection shall have to be determined by the executing court itself.” 9. Thus, the above principle is a settled legal position, the Court below observed in Para No.14 of the impugned Order that the "suit instituted by P.W.1 and others is latter in point of time and Ex.Al is obtained even after the decree in favour of RW1. I am of the view that the claim petition filed under Order 21 Rule 97 CPC is not maintainable as the claim petitioners are purchasers during pendente lite", is erroneous, in view of the law laid down by the Hon'ble Apex Court in Har Vilas Mahendra case(supra). 10. The Court below is of the view that the suit filed by the respondent No.1/DHr in O.S.No.60 of 2006 is first in point of time to the suit filed by the appellants in O.S.No.297 of 2006 and also of the view that the appellants have purchased the property during the pendency of the litigation, which comes under the principle of lis pendens. As such, the claim petitions are not maintainable. 11. The execution of the agreement of sale by the respondent No.2/JDr in favor of the appellants is dated 06.07.2005, whereas the agreement of sale executed by respondent No.2/JDr in favor of respondent No.1/DHr is dated 23.10.2005. As such, the claim petitions are not maintainable. 11. The execution of the agreement of sale by the respondent No.2/JDr in favor of the appellants is dated 06.07.2005, whereas the agreement of sale executed by respondent No.2/JDr in favor of respondent No.1/DHr is dated 23.10.2005. The present appellants are claiming rights as per the agreement of sale dated 06.07.2005, which is anterior at point of time (about 3 months 17 days). The Court below did not consider the fact that the agreement of sale obtained by the appellants from the respondent No.2/JDr is prior to the agreement of sale claimed by the respondent No.1/DHr. 12. The trial Court failed to consider the settled principle of law laid down by this Court in the case of V. Srinivasa Reddy Vs. N.Hanumantha Reddy, , [ 2018 (6) ALD 68 ] that the date of the agreement has to be taken into consideration, but not the date of execution of sale deed. The said legal position was ignored by the trial Court. In fact, the suit in O.S.No.60 of 2006 was filed after the agreement of sale of the appellants dated 06.07.2005 and therefore, the question of lis pendens does not arise. 13. Further, the Hon'ble Apex Court in the case of Bishan Singh and others Vs. Khazan Singh and another, [ AIR 1958 SC 838 ] in which it was held as follows: "The doctrine of lis pendens applies only to a transfer pendente lite, but it cannot affect a pre-existing right. If the sale is a transfer in recognition of a pre-existing and subsisting right, it would not be affected by the doctrine, as the said transfer did not create new right pendente lite; but if the pre-existing right became unenforceable by reason of the fact of limitation or otherwise, the transfer, though ostensibly made in recognition of such a right, in fact created only a new right pendente lite." 14. The above judgement of the Hon'ble Supreme Court in Bishan Singh case (supra), further clarifies that the subsisting right or a pre-existing right of a person should not be affected by the doctrine of lis pendens. The appellants have obtained the agreement of sale dated 06.07.2005 prior to the execution of agreement of sale dated 23.10.2005 in favour of respondent No.1/DHr. The appellants have obtained the agreement of sale dated 06.07.2005 prior to the execution of agreement of sale dated 23.10.2005 in favour of respondent No.1/DHr. The appellants, by virtue of the agreement of sale prior in time, acquired a subsisting right over the subject property and the rights created in favour of respondent No.1/DHr is subsequent to the rights of the appellants. 15. As such, in the facts and circumstances of the case and in view of the judgement of the Hon'ble Apex Court, in Bishan Singh case (supra), the doctrine of lis pendens is not applicable, as the appellants have acquired title in their own right, legally upheld by the competent Court by decree in O.S.No.297 of 2006, filed for specific performance of agreement of sale dated 06.07.2005, which was decreed on 25.06.2008 and by virtue of the said decree, the respondent No.2/JDr and her family members executed a registered sale deed dated 13.03.2013 and legally conferred right and title against the subject property. 16. The Section 48 of the Transfer of Property Act, 1882 addresses the priority of rights created by transfers of immovable property. It establishes a legal framework for determining which rights take precedence when multiple transfers occur over the same property at different times. It is settled principle of law that when a person creates rights in or over the same immovable property at different times, and these rights cannot coexist or be fully exercised together, the later created rights are subordinate to the earlier rights unless there is a special contract or reservation that binds the earlier transferees. 17. In the present case also, the appellants' have claimed the rights as per the agreement of sale dated 06.07.2005, which is anterior at point of time and which culminated in filing of a suit for specific performance and after the suit is decreed, the sale deed was executed by the respondent No.2/JDr and her family members. The agreement of sale dated 23.10.2005 in favour of the respondent No.1/DHr are later created rights which are subordinate to the rights created in favour of the appellants under the agreement of sale dated 06.07.2005. As such, the said transfer or sale in favour of the appellants by the respondent No.2/JDr is relating to a subsisting right and which is created in their favour by virtue of the anterior agreement of sale dated 06.07.2005. As such, the said transfer or sale in favour of the appellants by the respondent No.2/JDr is relating to a subsisting right and which is created in their favour by virtue of the anterior agreement of sale dated 06.07.2005. Therefore, the doctrine of lis pendens cannot affect and is not applicable to the present case of the appellants. 18. The observation of the trial Court, at Para 11 of the impugned Order, reads as under: "When entire sale consideration was paid, except Rs.50,000/-, why Ex.Al was obtained by paying Rs.25 lakhs is a thousand dollar question. Rs.25.00 lakhs was paid by way of bank challan dated 13.03.2013. It means, the payments alleged to have been made under Ex.A6 Agreement are given go-bye. In other words, besides Rs.25.00 lakhs and the amount of Rs.4,75,000/- made under Ex A6, nearly Rs.29.00 lakhs and odd was paid to the respondent No.2 and her family members. Only a sweeping remark was made in para 5 of Ex. Al that the sale deed was executed as per the orders of Principal Senior Civil Judge in O.S.No.297/2006 dated 25.06.2008. I am reiterating, at the cost of repetition, that the decree Is otherwise and not in conformity with the averment made in Ex Al. This all goes to show that PWI and his co-purchasers are not bona fide purchasers for value." 19. The Hon’ble Apex Court in the case of Shanti Bhushan and others Vs. State of Uttar Pradesh and others, [2023 SCC Online SC 489] at Para No.23, held as follows: “23. Hence, when a sale deed is presented for registration, the registering authority must ascertain the correct market value of the property subject matter of the document on the date of execution of the document. The stamp duty is payable on the basis of such market value and not on the consideration mentioned in the document. If the consideration mentioned is more than the market value, the stamp duty will be payable on the consideration shown. Moreover, the market value mentioned in the agreement for sale or the market value prevailing on the date of the agreement or the market value prevailing on the date on which the bargain was struck is of no relevance for deciding the stamp duty. Moreover, the market value mentioned in the agreement for sale or the market value prevailing on the date of the agreement or the market value prevailing on the date on which the bargain was struck is of no relevance for deciding the stamp duty. The relevant market value is the one which prevails on the date of execution of the conveyance.” Therefore, the above said observation at Para 11 of the impugned Order of the trial Court are erroneous and against the settled principle of law in Shanti Bhushan case (supra). 20. The appellants being the prior agreement holders and obtained the sale deed dated 13.03.2013 from respondent No.2/JDr and family members, after passing of the decree in O.S.No.60 of 2006 on 23.06.2011, cannot be regarded as lis pendens purchase ignoring the date of agreements of sale of both the parties. Apart from that, the decree obtained by the respondent No.1/DHr on 23.06.2011 cannot override the rights of the appellants which are crystallized in their suit in O.S.No.297 of 2006 by the decree dated 25.06.2008 for specific performance in respect of the subject property. 21. Thus, the appellants' agreement of sale is prior in point of time. This means the subsequent transferor/respondent No.1/DHr cannot get the rights that undermine the rights already established by an earlier transfer in favour of the appellants. It is sufficient to hold that the appellants have interest in the subject property which is in execution, but they are not bound by the decree in execution. 22. The respondent No.1/DHr could not have been said to have a better title than the appellants whose rights in the property were crystallized by decree in O.S.No.297 of 2006 dated 25.06.2008. Mere pendency of the suit for specific performance filed by the respondent No.1/DHr against respondent No.2/JDr in O.S.No.60 of 2006 does not and cannot nullify, though it was ended in granting a decree on 23.06.2011 which is in execution before the Court below. The Court below in the impugned Order has no power to declare the decree obtained by the appellants earlier, as inoperative and is not bona fide. 23. The Court below in the impugned Order has no power to declare the decree obtained by the appellants earlier, as inoperative and is not bona fide. 23. As such, in the facts and circumstances of the case and in view of the judgement of the Hon'ble Apex Court, in Bishan Singh case (supra) the doctrine of lis pendens is not applicable, as the appellants have acquired title in their own right, legally upheld by the competent Court decree in O.S.No.297 of 2006 filed for specific performance of agreement of sale dated 06.07.2005 which was decreed on 25.06.2008 and by virtue of the said decree, the respondent No.2/JDr and her family members executed a registered sale deed dated 13.03.2013 and legally conferred right and title against the subject property. 24. In the result, the present appeal suit is allowed by setting aside the Judgment and decree dated 10.02.2020 passed by the trial Court in E.A.No.20 of 2015 in E.P.No.176 of 2015 in O.S.No.60 of 2006. There shall be no order as to costs. Miscellaneous petitions pending, if any, shall stand closed.