MALLESHWARRAO Vs. BOKKA VENKATESHWARRAO

JUDGEMENT

(1.) BY the impugned order, the Executing Court rejected I.A.No.3 filed by the petitioner under Order-XXI Rules-54, 64, 65 and 66 read with Section-151 of CPC for attachment of schedule properties.

(2.) THE records reveal that the petitioner filed O.S.No.34/2001 for specific performance of an agreement of sale executed by the respondent herein in his favour in respect of properties bearing no.Sy.No.95/1, 95/2/ka, 95/3/ka, 95/ka/1/1 and 95/ka/1/2 totally measuring 4 Acres 24 guntas of Mustur Village, Tal. Gangavathi. The suit came to be decreed in part for refund of earnest money. After the decree by the trial Court, the petitioner herein filed Execution Petition No.88/2002 before the Court of Civil Judge (Sr.Dn.), Gangavathi. The respondent herein filed R.F.A.No 1072/2002 before this Court against the Judgment and Decree passed by the trial Court. Application was filed by the appellant in the appeal i.e. respondent herein for staying the decree passed by the trial court. The Division Bench in RFA 1072/2002 passed an interim order on 16.7.2003 as under:

(3.) LEARNED advocates addressed arguments supporting their respective cases. Sri. F.V. Patil, learned advocate for the petitioner submits that the impugned order is contrary to the Explanation to Section-52 of the Transfer of Property Act, 1882 ( 'the Act ' for short) inasmuch as the respondent cannot alienate the property till complete satisfaction or discharge of the decree passed in favour of the decree holder. Smt. Vidya, learned advocate for the respondent argues in support of the impugned order by contending that the alienations are made subsequent to dismissal of RFA and therefore there is no violation of the undertaking given by the respondent. She further submits that the respondent has another property bearing Sy.No.5 measuring 2 acres 32 guntas situated at Chintoli village, which can be attached and the same would satisfy the decree passed in favour of the petitioner in respect of payment of earnest money.