HUKUM SINGH Vs. MANGILAL

JUDGEMENT

(1.) THIS Second Appeal is directed against the order dated 1.10.2003 passed by the Illrd Additional impugned appeal preferred by the appellant against the order dated 17.12.2002 passed by the Executing Court was affirmed and the objections preferred by the appellant under O. 21 R. 97 read with R. 101 and S. 151 of the CPC were overruled. Gajendra Singh respondent No. 2 owned land bearing Survey No. 277/5 and 274/4 admeasuring 1.568 hecteres situated in Village Jalodia. Out of aforesaid area, Mangilal had entered into an agreement on 30.5.1976 with Gajendra Singh to purchase 3.15 biswas (0.784 hecters) of land. Upon failure of Gajendra Singh respondent No. 2, Jalodia to execute the sale deed, respondent No. 1 Mangilal instituted a suit for specific performance of the Contract in the year 1997. The Agreement was entered on 30.5.1976. Suit preferred by Mangilal was dismissed by the trial Court by judgment dated 19.2.1981. The judgment of trial Court was successfully challenged by Mangilal in First Appeal and lower appellate Court vide judgment dated 24.9.1986 decreed the suit. Defendant was unsuccessful in Second Appeal before the High Court and Second Appeal was dismissed on 14.1.1987 and decree for specific performance of the Contract was confirmed. Thereafter, plaintiff decree- holder filed the execution application. The judgment debtor respondent 2 herein filed objection with regard to the territorial jurisdiction of the executing Court. On such objections being raised the executing Court although held that it has the territorial jurisdiction but ordered parties to lead evidence to ascertain the location of the suit land. While the evidence was being recorded appellant filed application under O. 21 R. 97 contending that Survey No. 274/4 is not situated in Village Jalodia. It was also contended that the appellant had purchased the suit land from the judgment debtor by registered sale deed dated 16.8.1980 and since then the appellant No. 1 is in possession of the suit land. Thus, he tried to resist the execution of the decree which has been granted in favour of respondent No. 1 Mangilal. The claim set up by appellant was admitted by respondent No. 2 judgment debtor.

(2.) LEARNED trial Court considered objections raised by the appellant and after recording the evidence led by the objector as well as by decree holder came to the conclusion that the appellant No. 1 is not a bona fide purchaser without prior notice of Agreement of sale or the suit which was decreed by the trial Court in favour of Mangilal. Thus, the executing Court found that so called registered sale deed in favour of appellant No. 1 cannot defeat rights of decree holder. Trial Court also found that the execution proceedings can go on. Being dissatisfied with the finding recorded by the executing Court, appellants preferred First Appeal before the lower appellate Court. Lower appellate Court after hearing the parties confirmed the order of the executing Court by the order impugned. Learned lower appellate Court after scanning evidence came to the conclusion that appellants' sale deed is hit by Doctrine of lis pendens.

(3.) I have carefully considered the contention in the light of reasoning assigned by the lower appellate Court in the order impugned. After careful consideration, I do not find any infirmity or illegality either with the reasoning or with the findings recorded by the lower appellate Court. Valid and cogent reasons have been assigned by the lower appellate Court to come to findings that the appellants are not bona fide purchasers without any prior notice. The suit was instituted by the plaintiff decree holder on 3.9.1977 and it was during the pendency of the suit appellant purchased the land by registered Sale Deed dated 16.8.1980. Before entering into the said transaction, appellants did not enquire from the seller with regard to the pendency of the litigation. According to the appellants they had negotiated with Gajendrasingh and his brother Hemsingh for purchase of their entire holdings admeasuring 15 bighas suit land in Village Jalodia.