SANJUKTA SAHU Vs. SAILABALA MISHRA

JUDGEMENT

(1.) THE appellant filed an application under Order -XXI, Rule -99 C.P.C. in Execution Case No.2 of 2002 pending before the learned Civil Judge (Senior Division), Talcher registered as I.A. No.2 of 2010 resisting the execution of the decree in the execution proceeding on the ground that she is the title holder over the property from which, eviction is sought for. The said application being dismissed, the appellant filed R.F.A. No.7 of 2010, which was disposed of by the learned Additional District Judge, Talcher by this judgment dated 22.05.2010 confirming the order of the executing Court. Being aggrieved, the appellant has preferred the present appeal.

(2.) THE Second Appeal has been admitted on the following substantial question of law : - "Whether the learned Courts below have acted contrary to law in dismissing the application filed by the appellant under Order -XXI, Rule -99 C.P.C. on the ground that this Court in a connected writ application has held that the appellant was a lis pendens purchaser and has acquired no title over the property and as such the learned lower Courts are bound by such a finding and cannot rule otherwise even though the learned lower appellate Court has given all the findings in favour of the appellant -

(3.) THE learned Civil Judge (Senior Division), before whom, the execution case is pending, after hearing the appellant as the petitioner in the said I.A. No.2 of 2010 and the decree holders respondents note the facts of the case and coming to the conclusion that the responder No.16 in his capacity as Power of Attorney holder of his brother, who is the predecessor -in -interest of the other respondents, executed the sale deed on behalf of his brother and the subsequent sale by the Other respondents in favour of the appellant was during the pendency of the execution proceeding and therefore, hit by the principles of lis pendens, dismissed the application. The appellant preferred R.F.A. No.7 of 2010 and the learned lower appellate Court, after hearing the parties, upon analyzing the evidence adduced in the proceeding under Order -XXI Rule -99 C.P.C., came to the finding that the land sold by the responder No.16, was not sold by him as the special Power of Attorney holder (his brother late Hemanta Kumar Mishra, who was dead by the date (execution of the said sale deed. The rest of the property, which fell to the share of the other respondents, was also sold to the appellant by them by a separate sale deed subsequently. Thus, the learned appellate Court after giving such findings in favour of the appellant, referring to the order of this Court passed in the writ application on 02.12.2008 came to the conclusion that the findings of this Court in the said order to the effect that the alienation of the suit land to the appellant was hit by the principles of lis pendens and the appellant acquired no title, are binding on the executing Court as well as the lower appellate Court, came to the following conclusion : - "In this case, the Hon'ble High Court have passed order that the appellant being lispendence purchaser did not acquire any title over the suit land. So, the said order is binding on this Court as well as on the learned executing Court. As such, this Court is bound to respect the order of the Hon'ble Court passed in W.P.C. No.11060 of 2008. The review petition filed by the appellant to review the said order was rejected by the Hon'ble Court. Hence, I held that the learned lower Court did not commit error in dismissing the petition filed by. the appellant under Order 21 Rule 99 of the C.P.C. that the decree was discharge in view of the sale of the disputed land by the respondent No.16 and his co -sharers to the appellant."