CHANDRIKABAI Vs. JODHAN RAO AND ORS.

JUDGEMENT

(1.) The substantial questions of law involved, formulated and to be answered by this Court in this appellant's second appeal are as under:-

(2.) Suit filed by Jodhan Rao and Ramji Rao, original applicants herein, being Civil Suit No.25A/73 under Sec. 6 of the Specific Relief Act, 1963 (hereinafter called as "the Act of 1963") was decreed ex-parte by the trial Court in their favour on 16/11/76. Basant Rao, defendant No.1 therein filed an application for setting aside ex-parte decree. That application was dismissed on 10/8/1978 and thereafter, he preferred appeal under Sec. 96 of the CPC, which was also dismissed on 5/3/1980. In the meanwhile, decree was executed on 21/9/1977 by Jodhan Rao and Ramji Rao and thereafter on 22/9/1977, the appellant herein preferred an application under Order 21 Rules 99 and 100 of the CPC claiming possession from the respondents herein, which the trial Court dismissed holding that the appellant being stranger and having purchased the suit property on 15/4/1975 during the pendency of suit filed by the respondents herein, the said alienation is hit by Sec. 52 of the Transfer of Property Act, 1882 (hereinafter called as 'TP Act'). The appeal taken by the appellant was also dismissed on 19/4/1998, against which, this second appeal under Sec. 100 of the CPC has been filed by the appellant, in which substantial questions of law have been framed by this Court, which have been set-out in the opening paragraph of this judgment.

(3.) Mr.R.S.Marhas, learned counsel for the appellant, would submit that both the Courts below were absolutely unjustified in holding that transfer made by Basant Rao in favour of the appellant is hit by Sec. 52 of the TP Act. Since that suit was based on Sec. 6 of the Act of 1963, therefore, the provisions contained in Sec. 52 of the TP Act would not be applicable, as such, the two Courts below have committed legal error in rejecting the application filed by the appellant herein under Order 21 Rule 99 and 100 of the CPC. Therefore, the orders passed by Courts below deserve to be set aside.