MOHAMMAD RAZA ALI Vs. ZAREEN TAJ BEGUM

JUDGEMENT

(1.) This appeal is directed against an order dated 31-8-1995 passed by the learned Xth Additional City Civil Judge, Mayo Hall Bangalore. Effectively, on an application filed by the 2nd respondent to this appeal the learned trial Judge directed restoration of possession of property that had been delivered in execution. The order has been seriously assailed on a number of grounds which I shall deal with, but it is first necessary to set out the background to this dispute which is of some consequence.

(2.) The disputed property is situated at No.27, Serpentine Street, Richmond Town, Bangalore. The property in question had been purchased by the 2nd respondent to this appeal who was the applicant before the lower Court in the year 1991. According to him, the disputed property is supposed to have been purchased from the daughter of respondent No.1. It is necessary for me to indicate as to how the right of respondent No.1 to the property arose. In the first instance on 31st May 1990 a suit bearing No.OS 228/90 was instituted in the Court of the Principal Sub-Judge, Ranga Reddy District, Andhra Pradesh by Mohammed Murtaza Ali for partition of family properties situated at Andhra Pradesh and Bangalore, respondent No.1 was the first defendant in that suit. On 27-7-1990 a compromise decree was passed in that suit on the basis of which the present appellant contends that he is the decree- holder in respect of the property in dispute which is situated in Bangalore. The respondent No. 1 thereafter, in September, 1990 applied for setting aside the compromise decree and on 18-8-1993 the Principal Sub-Judge, Ranga Reddy District, allowed the application and set aside the compromise decree. Against this order CRP 452/94 was filed in the Andhra Pradesh High Court and the High Court on 4-10-1994 set aside the order of the Principal Sub-Judge and restored the compromise decree. The present appellant thereupon took out Execution 1006/95 and since the property is situated at Bangalore, the Court at Andhra Pradesh transmitted the decree to the Bangalore Court for execution.

(3.) At this stage, it is necessary to indicate that in the meanwhile, the respondent No.2 to this appeal had purchased the property in 1991. According to him, the property in question was tenanted and one Mrs. Doris was in occupation thereof. Respondent No.1 had instituted eviction proceedings in which he was successful and the tenant thereafter appealed against the decree passed against her which appeal was dismissed. The respondent No.2 is therefore as far as those proceedings are concerned, the person who is entitled to possession under the Court orders. It is however alleged that one Madhava Reddy, who claims to be the husband of Mrs. Doris who had since died, was the person from whom the physical possession was taken over by the executing court. On 18-1-1995, the Andhra Pradesh High Court stayed further proceedings in execution, but as indicated by me, the decree had already been executed and the possession handed over to the present appellant on 16-1-1995. It was under these circumstances that an application under O.21, Rr.99 to 101 was filed by the 2nd respondent before the executing court.