SHAFI Vs. KHADERKUNHI

JUDGEMENT

(1.) The revision under Section 115 of the C.P.C. has been filed against the order in an execution proceedings passed by the learned Principal Munsiff, Kasaragod.

(2.) Short facts giving rise to the revision are thus: The revision petitioner was the 2nd defendant in O.S. No. 152/96 on the file of the Munsiff Court, Kasaragod. Suit was one for specific performance of an agreement for sale. The first respondent was the plaintiff and the suit was filed to seek enforcement of an agreement for sale over the suit property having an extent of 37 cents, executed by the second respondent. On agreement of sale, he was put in possession of the property, but despite payment of the major portion of the sale price and his readiness and willing to pay the balance amount, the 2nd respondent committed breach of contract by executing a sale deed over the property in favour of the 2nd defendant in the suit, the present revision petitioner, was the case advanced by the first respondent/plaintiff. The defendants in the suit including the revision petitioner filed written statements, and resisted the suit claim. The second defendant/revision petitioner contended that he was a CRP No. 155/09 - 2 - bonafide purchaser of the property. The trial court upholding the contentions raised by the defendants dismissed the suit against which the first respondent preferred an appeal, which was allowed granting a decree in his favour. The revision petitioner/2nd defendant has filed a Second Appeal with a petition for condonation of delay and it is stated to be pending consideration. Meanwhile, the first respondent, on default of the second respondent/1st defendant in the suit to execute a sale deed as mandated under the decree got the registration of the sale deed conveying the right over the property in his favour through the court. Alleging subsequent trespass, after passing of the decree, by the revision petitioner/the 2nd defendant, he filed a petition before the execution court to put him in possession of the property through court. Petitioner, in response to the notice received from the execution court, filed objections to the executability the decree contending that there was no decision for possession of the property, but only for enforcement of the agreement for sale by execution of the sale deed conveying the property by the second respondent/first defendant in the suit. The learned Munsiff negatived the objections raised by the petitioner, passed the impugned order dated 4th February, 2009, and, its correctness and propriety is impeached in the present revision petition.

(3.) Before pressing into service the challenge against the executability of the decree, on the grounds canvassed as above, the revision petitioner/2nd defendant in the suit had filed a petition under Order 21 Rule 97 C.P.C. setting up of a case that he has independent title and right over the property covered by the decree. The claim raised under that petition was dismissed, against which a Writ Petition was filed before this court as W.P.C. No. 30265/08, which was disposed by judgment dated 14.11.2008. The judgment rendered by this court enables the revision petitioner to challenge the executability of the decree on the ground raised that no decree for possession was passed in the suit, but only a decree for specific performance of the agreement for sale by execution of a registered sale deed by the first defendant in the suit, is the further case of the petitioner. As a bonafide purchaser of property under a sale deed registered before the institution of the suit, he obtained possession over the property and as no decree had been passed by the court in the suit against him in execution of the decree thereof, the revision petitioner cannot be divested of the possession of the property was the challenge pressed into service, which was negatived by the execution court under the impugned order.