MANOJ KUMAR SHARMA Vs. MAHADEV PRASAD

JUDGEMENT

(1.) BY this petition under Section 115 of the Code of Civil Procedure the applicant/objector seeks to challenge the correctness, validity and propriety of the orders dated 10.5.1999 and 19.7.1999 passed by the learned 6th Civil Judge, Class-I, Jabalpur in Execution case No. 176-A/82, whereby the applicant's right to lead evidence has been closed.

(2.) THE facts in nut-shell are that the applicant-decree-holder filed a civil suit somewhere in the year 1974 seeking possession of the property in dispute against the non-applicant No. 2. The suit was decreed in favour of the present decree-holder but during the pendency of the suit, somewhere in the year 1991, the present applicant purchased the property. When the decree was put into execution the present applicant/objector resisted the delivery of possession and submitted his objections inter alia pleading that as he was a bona fide purchaser for consideration without notice, the decree could not be executed against him. It appears that the trial Court was moved by the application and permitted the present applicant to lead evidence in support of his objections. Number of the opportunities were given to the applicant but as he failed to lead evidence, the executing Court closed his right to lead evidence. Being aggrieved by the said order the applicant/objector has filed this petition.

(3.) THE defence of the present applicant appears to the under Section 19(b) of the Specific Relief Act which provides that every transferee under a subsequent contract shall be bound by the terms of the first contract in a suit for specific performance except in a case where the subsequent purchaser is a bona fide purchaser for consideration without notice of the existence of the contract. The principles underlying Section 19(b) of Specific Relief Act, in the opinion of this Court, would not come to the rescue or defence of the present applicant. The defences which are applicable to a subsequent purchaser for consideration without notice, are available to the said purchaser in a suit for specific performance of contract but not in a case where the plaintiff claims title in himself and files a suit for possession.