CHAWLA MOHAN KRISHNA GUPTA Vs. NEELGAR RANGANATH

JUDGEMENT

(1.) THE appellant herein filed a suit in O. S. No. 92/81 for specific performance against one Maharudrappa v. Hubli and the said suit was decreed in favour of the appellant on 28-9-1989. On appeal by the defendant, the judgment of the trial Court was reversed and second appeal preferred by the appellant was allowed in his favour on 27-3-1998. The defendant moved the Apex Court and at the initial stage the petition was dismissed. The appellant being the decree-holder, moved the Executing Court by filing an application under Order 21, Rule 101 r/w Section 47 and 151, CPC, for appellant being put in physical possession of the suit property following the sale deed being executed in favour of the appellant through the Court commissioner. Following warrant being issued by the Executing Court, the respondents herein prevented the Court officials from executing the warrant and filed their objections before the Executing Court under Order 21, rule 97 and 101 r/w 47 and 151 of CPC. The trial Court allowed the said applications filed by the respondents and also declared that the respective respondents are the absolute owners of the suit items, namely CTS 3772 in respect of the applicants in LA. 9 and CTS 3773 in respect of the applicant in I. A. 19. The lower appellate Court confirmed the decision of the trial Court and held that the respective applicants in LA. 9 and LA. 19 are the absolute owners in possession of CTS 3772 and CTS 3773 respectively and held that the decree obtained by the decree holder is not binding on the applicants. Aggrieved by the concurring findings of the Courts below in allowing the applications filed by the objectors, the decree-holder has preferred this second appeal.

(2.) THE facts up to the stage of the appellant approaching the Executing Court are not in dispute. In other words, the appellant succeeded in suit for specific performance and it was ultimately confirmed by the Apex Court. Sale deed was executed in favour of the appellant in respect of the suit items through the court Commissioner. It is only when the warrant of execution was issued, that the objectors moved the Executing Court by filing IA. 9 and LA. 19 contending that they are the absolute owners of the respective suit items and both the objectors traced title to the suit properties to the sons of the judgment-debtor. It is their case that there was a partition in the family and the three sons of judgment-debtor became the owners of the suit items and in turn the applicant in LA. 19 purchased suit item CTS 3773 under a registered sale deed executed by the sons of the judgment-debtor on 6-7-1990 and since then the applicant is in lawful possession of the said suit item as the absolute owner. The applicant in LA. traced his title to the suit property following the compromise decree entered into in O. S. No. 71/99.

(3.) THUS, in both the applications LA. 9 and la. 19 the respective applicants who were the objectors contended that they are the third parties and as such, they are not bound by the decree passed in favour of the appellant and it was also their case that they were not claiming the suit items under the decree passed by the trial Court but independently of the said decree and therefore the decree passed in favour of the appellant does not bind them.