DOKI SURYA PRAKASH RAO Vs. GOPAL KRISHNA DOLAI

JUDGEMENT

(1.) THE petitioner was the defendant in T. S. No. 223 of 1990 of the Court of the Civil Judge (SD), Berhampur. The said suit was inter alia for specific performance of contract, and in the alternative for realization of certain amount with interest thereon. . The suit was decreed as long back as on 22nd June, 1998. The decree is sought to be executed in Execution Petition No. 27 of 2003. The order dated 3-5-2003 passed by the executing Court is assailed in this writ petition.

(2.) BEREFT of unnecessary details, the facts of the case are that Khali Dolai, the father of the opposite party, had filed the aforesaid T. S. No. 223 of 1990 inter alia contending that being in need of money the defendant-petitioner had approached him wishing to sell the suit property and Khali being interested to purchase the same an agreement was entered into in that regard among them on 18-1-1986. In consonance with that agreement certain amounts were paid on different dates by Khali to the defendant-petitioner, the total amount being Rs. 1,01,000. 00. The defendant-petitioner though agreed to execute and register the sale deed after receiving and received the balance consideration money of Rs. 47,000. 00 he having failed to do so in spite of several approaches by Khali, the latter was constrained to file the aforesaid suit. The defendant-petitioner neither appeared in the suit nor did file any written statement. However the suit proceeded ex parte and ex parte judgment and decree were passed on 17-7-1993 and 3-8-1993 respectively. Thereafter the defendant-petitioner filed a petition under Order 9, Rule 13, CPC for setting aside the said ex parte judgment and decree and the Court below ordered so. Thereafter the defendant-petitioner filed his written statement. The trial Court decreed the suit and by judgment and decree dated 22-6-1993 and 9-7-1998 respectively the defendant-petitioner was directed to execute and register a sale deed in favour of the plaintiff in respect of the suit property on receiving balance consideration amount, from the plaintiff within two months, failing which liberty was granted to the plaintiff to get the sale deed executed through Court by way of execution. The said Judgment/ decree having not been challenged in appeal have attained finality. As the defendant-petitioner did not take any steps to comply with the decree, Execution Case No. 27 of 2003 was Initiated by the plaintiff. The plaintiff/decree-holder deposited a sum of Rs. 47,000. 00 before the Court below and prayed to execute and register the sale deed. Though notice of the Execution Case was issued, the defendant/judgment-debtor did not appear in Court nor did file any objection under Section 47, CPC. Thereafter a draft Sale Deed was filed in Court. At that stage an objection was filed by the defendant/judgment-debtor under Order 21, Rule 34, CPC taking a stand that the house covered under the Draft Sale Deed being not his exclusive property and the same being his ancestral property and another co-sharer being there, cannot be sold. It was further contended that the southern half portion of the house covered under the sale deed had been sold to one A. Bangali Saraf by a registered sale deed executed by the petitioner and his son, and the northern portion of that house covered under the Draft Sale Deed had also been sold to one Shilla Bhaskar rao by a registered sale deed. As those two purchasers were in possession of the respective portions of the house purchased by them, they having not been impleaded as parties to the proceeding, the Draft Sale deed to that extent could not be executed and accordingly the judgment-debtor petitioner prayed to reject the said Draft Sale deed.

(3.) THE aforesaid petition filed by the judgment-debtor was strongly resisted by the plaintiff/decree-holder mainly on the ground that the plea of the judgment-debtor that the property covered under the Draft Sale deed was a joint family property was never raised in the suit. On the other hand it was specifically stated in the agreement executed on 18-12-1986 that the property was the self-acquired property of the judgment-debtor and not a joint family property. Thus the belated plea taken by the judgment-debtor could not be accepted. In reply to the plea of the judgment-debtor that the property in question had been sold to two outsiders who were in possession thereof, the plaintiff-decree holder submitted that the suit having been filed in the year 1990, any sale effected with regard to the suit property thereafter would be treated as li pen-dens sales and the purchasers acquired no title. With the aforesaid pleadings the decree-holder has prayed that the executing court has not committed any error and the writ application may be dismissed in limlne.