SUJATA SANZGIRY Vs. ANKUSH R NAIK

JUDGEMENT

(1.) This first appeal is directed against the Judgment and order (deemed decree) dated 9th October, 1997, passed by the Executive Court on an application under Order 21, Rule 97 of Code of Civil Procedure ('cpc', for short).

(2.) The appeal arises in the facts and circumstances which may be briefly indicated first :"i. By an Agreement for Sale dated 5th August, 1989, the first respondent agreed to sell the Flat No. 201. St. Inez, Panaji, Goa, to the appellant for a consideration stated therein. ii. The respondent No. 1 failed to honour the agreement for sale which necessitated the appellant to file a suit for specific performance and delivery of possession against the respondent no. 1 on 13-2-1991. iii. In the suit filed by the appellant, an application was made for temporary injunction restraining the respondent No. 1 from inducting any third party. iv. The ex parte temporary injunction was granted by the Trial Courts on 13-2-1991 which was later on confirmed on 27-8-1991. v. The dispute raised by the present appellant in the suit for specific performance and delivery of possession was referred to the Arbitrator. vi. On 27-5-1993, the Arbitrator passed an Award in favour of the appellant directing the respondent No. 1 to convey the Flat no. 201 in favour of the appellant and deliver possession upon the appellant making payment of Rs. 1,70,000/- to the respondent No. 1. vii. The Award passed by the Arbitrator on 27-5-1993 was made Rule of the Court on 3-6-1994. viii. The Award having been made Rule of the Court and the Decree having been passed in favour of the appellant directing the respondent No. 1 to convey Flat No. 221 and deliver the possession thereof to the appellant, the appellant levied execution of the decree on 26-9-1994. ix. In the execution application, respondent No. 1 filed objection that he was not in possession. The Executing Court, by Order dated 20-11-1995, dismissed the objection of respondent No. 1 and ordered execution of the Decree. x. The present respondent No. 2, on 29-11-1995 made an application under Order 21, Rule 97, Civil Procedure Code claiming to be in possession of the flat in his own right and set up the case thus : that by Agreement for Sale dated 16-10-1990 the respondent no. 1 agreed to sell Flat No. 201 for a consideration of Rs. 2,80,000/- to him : that the applicant (respondent No. 2 herein) had already paid a sum of Rs. 2,50,000/- to the respondent No. 1 after the necessary occupancy certificate was obtained from the panaji Municipal Council pursuant to the Agreement for Sale; that the applicant had resisted the execution of the decree and refused to hand over possession to the bailiff; that the applicant was not aware of any suit filed by the Decree-holder (the appellant herein) and the Judgment-debtor (respondent No. 1 herein). xi. The inquiry was held on the application made by the respondent no. 2 under Order 21, Rule 97, Civil Procedure Code. xii. Upon conclusion of the inquiry, the Executing Court allowed the application made by the respondent No. 2 vide impugned order dated 9-10-1997. "

(3.) The appellant who is the decree-holder, aggrieved by the Executing court's Judgment and Order, has filed this first appeal.