BARKALLAH Vs. SAJRUNISHA

JUDGEMENT

(1.) The defendant-applicant has approached this Court assailing the orders, passed by the courts below whereby objection filed under Section 47 CPC by the respondent was allowed holding that the decree is non-executable.

(2.) The plaintiff-respondent filed a partition suit against the applicant which was decreed, aggrieved, applicant preferred an appeal, in appeal on the basis of compromise, the suit was decreed. In execution proceedings instituted by the applicant an objection was preferred by the respondent under Section 47 CPC contending that the property had already been sold by the applicant to the respondent, as such the decree has become un-executable. The executing court allowed the objection by order dated 26 August 2013 in Execution Case No. 2 of 2010, aggrieved, applicant preferred a revision being Revision No. 109 of 2013( Barkhallah Vs. Sajrunnisha). The revisional court noted in the impugned order that the compromise is dated 24 January 1989 whereas the applicant had sold the property on 7 July 1988 to one Ali Akbar who further transferred the property to the respondent, the property that was transferred was subject matter of the suit. The order would further reflect that the applicant played fraud upon the court as it was not brought to the notice of the appellate court, while filing the compromise, that the property had already been sold and the applicant is no longer owner. It has been further noted that till date no suit for cancellation of the sale deed has been instituted, further, the original vendee Ali Akbar was not party to the suit, as such the compromise was obtained fraudulently, therefore, the revisional court rejected the revision affirming the order of theexecuting court.

(3.) The learned counsel for the applicant would submit that principle of lis pendens as enshrined under Section 52 of Transfer of Property Act would apply. The submission in my opinion is misconceived. It is admitted that the suit property was transferred by the applicant prior to the compromise to Ali Akbar who thereafter transferred it to the respondent, therefore whatever right or title the applicant had in the suit property stood extinguished. The executing court was justified in allowing the objection of the respondent in these circumstances. Learned counsel for the applicant failed to show any illegality, infirmity or jurisdictional error in the impugned order. In support of his submission, learned counsel placed reliance upon the judgement of Apex Court rendered in Kirpal Kaur Vs. Jitgender Pal Singh and others, 2015 AIR(SC) 2967.