RAMI DAHYABHAI SOMABHAI Vs. RAMI JAGJIVAN MOTIBHAI

JUDGEMENT

(1.) A question of considerable importance has been raised in this appeal arising from execution proceedings initiated by respondents Nos. 1 to 3 while executing the decree in Regular Civil Suit No. 152 of 1965. The appellant and respondents Nos. 4 are original judgment debtors and respondents Nos. 1 2 3 and 5 are original decree holders.

(2.) Facts relevant to the discussion of the point raised herein lie within a narrow compass. Decree holders (referred to as landlords) filed Regular Civil Suit No. 152 of 1961 for recovering possession of the property situate in village Anklav in Borsad taluka of Kaira District from the judgment debtor (referred to as tenant) Amongst the property which was the subject matter of suit there were premises consisting of a house and two rooms (for short suit premises) which were in possession of the tenant. This suit ended in a consent decree by which defendant tenant agreed to vacate and hand over peaceful possession of the suit premises on or before 30th September 1972. As the defendant tenant failed to comply with the decree the landlords field Regular Darkhast No. 69 of 1972 of 3rd October 1972 requesting the Court to evict the tenant from the suit premises and to hand over vacant possession of the same to the landlords. The tenant resisted execution as per his written statement Exh. 16 and by an amendment application Exh. 27 he put forth further objections to the execution of the decree. It is not necessary to refer to all the contentions raised by the defendant in Exhs. 16 and 27. One of the contentions taken by the tenant was that the tenant had purchased one third undivided share in the suit premises belonging to Respondent No. 5 Narottam Motibhai brother of plaintiffs Nos. 1 and 2 and that he has become a coowner of the suit premises with the original plaintiffs Nos. 1 and 2 and therefore decree for eviction cannot be executed against him. This contention found favour with the executing Court and Darkhast was dismissed. Original Plaintiff decree holder preferred Civil Appeal No. 51 of 1975 in the District Court at Kaira. The learned District Judge who heard the appeal was of the opinion that as sale in favour of the tenant was during the pendency of the proceedings sale would be covered by doctrine of lis pendency as enacted in sec. 52 of the Transfer of Property Act and therefore the tenant has not become co-owner. He also overruled other objections raised on behalf of the tenant and allowed the appeal and directed that the execution application do proceed further. The tenant judgment debtor has questioned the correctness of the decision of the learned District Judge in this Second Appeal preferred by him.

(3.) Mr. C. K. Patel learned Advocate who appeared for responde nts Nos. 1 2 and 3 original plaintiffs urged that sale by Narottam Moti bhai in favour of the original defendant appellant in this appeal is hit by sec. 52 of the Transfer of Property Act and it cannot therefore affect the rights of the original plaintiffs to obtain vacant possession of the premises under the decree which is binding on the defendant tenant. This contention is upheld by the learned District Judge but it has no merits.