JAGWANT SINGH Vs. BALWINDER SINGH AND ORS.

JUDGEMENT

(1.) Present appeal has been filed against dismissal of objections by auction purchaser objecting to the execution of the decree for specific performance of the agreement to sell dtd. 21/11/2000 with respect to the land measuring 8 bighas and 1 biswas. Objector-auction purchaser is brother of Saudagar Singh (judgment-debtor) who had agreed to sell in favour of decree-holder Balwinder Singh. Objector petitioner Jagwant Singh is stated to have purchased the property owned by his brother Saudagar Singh pursuant to a decree for recovery of Rs.4,05,000.00 passed on 18/7/2001.

(2.) The question which needs determination is whether attachment of the land pursuant to a decree for recovery of money and subsequent sale of the property would defeat the rights of the plaintiff who has got a decree for specific performance of the agreement to sell in his favour. No doubt, agreement to sell does not create any right in the property, however, the agreement to sell creates an obligation arising out of the agreement to sell and such obligation is enforceable through suit for specific performance of the agreement to sell. Learned counsel for the objector-petitioner has referred to Sec. 64 of the Code of Civil Procedure and stressed on the point that the property in question was attached on 15/5/2002 before a suit for specific performance of the agreement to sell was filed by the decree- holder Balwinder Singh. Hence, he submitted that once the property had been attached prior to the filing of the suit for specific performance of the agreement to sell, therefore, the orders passed by the Courts below dismissing the objection are erroneous. The issue raised has already been decided by the Hon'ble Supreme Court in the case of V.K. Sreedharan Vs. Chandramaath Balakrishnan and another (1990) 3 SCC 291. In the aforesaid judgment, Hon'ble Supreme Court examined difference of views expressed by different High Courts. View expressed in a judgment passed by Punjab and Haryana High Court in the case of Mohinder Singh Vs. Nanak Singh, AIR, 1971 P&H 381 was held to be wrong and the view of Madras High Court, Calcutta High Court, Bombay High Court and Travancore-Cochin High Court were upheld. The operative part of the judgment passed by the Hon'ble Supreme Court in Paras 7, 8 and 9 are extracted as under:-

(3.) This judgment passed by the Hon'ble Supreme Court in V.K. Sreedharan's case (supra) has been followed by the Hon'ble Supreme Court in a subsequent judgment Rajender Singh Vs. Ramdhar Singh and others (2001) 6 SCC 213 when Hon'ble Supreme Court while remitting the case had referred to the question that whether agreement to sell entered into by the judgment-debtor prior to the attachment of the property in execution of the decree, would prevail over the attachment pursuant to a decree for recovery of the money. Keeping in view the aforesaid judgments passed by the Hon'ble Supreme Court, this Court does not find any error in the orders passed by the Courts below dismissing objection petition filed by the objector namely Jagwant Singh.