Telangana High Court
Mis.Neelam Builders And Developers, vs Syed Aijaz Mohiuddin on 26 April, 2024
THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
A.S.No.340 OF 2023
JUDGMENT:
Aggrieved by the judgment and decree dated 14.06.2023 in E.A.No.24 of 2023 (Old E.A.No.5 of 2021) in E.P. No.1403 of 2022 (Old E.P.No.65 of 2006) in O.S.No.13 of 2003 (hereinafter will be referred as 'impugned order') passed by the learned X Additional District Judge, R.R. District at L.B.Nagar (hereinafter will be referred as 'trial Court'), the plaintiff preferred the present appeal to set aside the impugned judgment.
2. For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the trial Court.
3. The brief facts of the case, which necessitated the appellant to file the present appeal, are that the plaintiff filed O.S.No.13 of 2003 on the file of I Additional District Judge at Mahaboobnagar seeking specific performance of agreement of sale dated 27.05.2003 against defendant Nos.1 and 2 and the said suit was decreed on contest on 02.09.2006. The plaintiff filed E.P. No.65 of 2006 subsequently renumbered as E.P.No.1403 of 2022. During the pendency of the EP, the claim petitioner i.e., the appellant herein has filed E.A.No.5 of 2021 subsequently renumbered as E.A.No.24 of 2023 under order 2 MGP, J as_340_2023 XXI Rule 58 read with Section 151 of the Code of Civil Procedure. The brief averments of the claim application filed by the claim petitioner are as under:
a) Defendant Nos.1 and 2 are the absolute owners, pattedars and possessors of the suit schedule property having purchased the same through registered sale deed bearing document No. 2252 of 1999 dated 05.08.1999 from Manikonda Yadaiah Goud but the said Manikonda Yadaiah Goud unilaterally executed the registered cancellation deed bearing document No.24650 of 2006 dated 02.12.2006. Aggrieved by the same, the defendant Nos.1 and 2 filed W.P. No.23856 of 2008 declaring unilateral cancellation of the sale deed as null and void. Since the date of purchase, the defendant Nos.1 and 2 are in actual and exclusive possession of the suit schedule property and pattadar passbooks and title deeds were issued in their names.
b) Defendant Nos.1 and 2 have entered into registered development agreement - cum - General Power of Attorney bearing document No.2050 of 2020 dated 24.01.2020 with the claim petitioner to the extent of Ac.14.10 guntas in Sy.Nos.9/E and 32/A of Solipur Village to do all the acts with 43% share of 3 MGP, J as_340_2023 sale. The claim petitioner has paid Rs.50,00,000/- to the defendant Nos.1 and 2 on 27.12.2019, 20.01.2020 and 25.01.2020 towards refundable deposits. The claim petitioner spent huge amounts for the development of the said land.
c) In the month of March, 2021 the claim petitioner came to know that plaintiff filed O.S.No.13 of 2003 against defendant Nos.1 and 2 and the said suit was decreed on 02.09.2006. The defendant Nos.1 and 2 filed A.S.no.657 of 2006, which was dismissed on 23.03.2010 by the High Court. The claim petitioner also came to know that the E.P. No.65 of 2006 filed by the plaintiff was dismissed on 27.11.2019. After dismissal of the EP filed by the plaintiff, the defendant Nos.1 and 2 entered into registered development agreement - cum - General Power of Attorney bearing document No.2050 of 2020 dated 24.01.2020 with the claim petitioner and also delivered possession of the lands. The plaintiff is aware of the fact that the suit schedule lands were in possession of the claim petitioner since 24.01.2020 and the plaintiff never made any objection before any authority and he had not added him as party to the Execution Petition.
d) It appears that the plaintiff and defendant Nos.1 and 2 4 MGP, J as_340_2023 connived together and created litigation in the matter after entering into development agreement - cum - General Power of Attorney bearing document No.2050 of 2020 dated 24.01.2020 with the claim petitioner. The claim petitioner came to know that the agreement of sale itself was manipulated document and the collusive suit was filed so as to make wrongful gain and to usurp the lands for which the claim petitioner entered into.
4. To the above said claim petition, the plaintiff filed counter contending that the suit was decreed in his favour. The claim petition is filed objecting execution of the specific performance of decree without any cause of action. It is further contended that provisions of CPC relating to the filing of claim petition particularly Order XXI Rule 102 debar filing of a claim petition by any person claiming under JDR. Since the claim petition is filed by none other than a GPA of the judgment debtors, the same is patently prohibited by order XXI Rule 102 of the CPC. Hence, as per Order VII Rule 11 (d) of the CPC, the claim petition is liable to be rejected. Hence, prayed to dismiss the petition.
5. The defendant Nos.1 and 2 were set exparte.
6. After considering the rival contentions, the trial Court 5 MGP, J as_340_2023 dismissed the claim application. Aggrieved by the same, the claim petitioner preferred the present appeal to set aside the impugned order on the following grounds:
a) The trial Court failed to see that DHR failed to deposit the balance sale consideration of Rs.1 lakh which was originally deposited by him in the year 2006 and subsequently withdrawn under a Full Satisfaction Memo in the year 2016 vide cheque Petition No.17/2016 till EA No.4/2022 was filed by the JDRs seeking rescinding the Agreement of Sale dated 27.05.2003 and his conduct warrants the rescinding of the agreement of sale.
b) The claim petitioner is a bonafide agreement holder under DAGPA No.2050 of 2020 dated 24.01.2020 executed by defendant Nos.1 and 2, whereby the claim petitioner paid Rs.50 lakhs to them and also was put in possession of the suit schedule land.
c) The trial Court failed to decide E.A.No.24 of 2023 on its own merits but dismissed by referring to the proceedings in CRP No.2051 of 2021 dated 14.03.2022 which was concerned with E.A.No.4 of 2021 filed by the JDR against DHR with which the present petitioner is not concerned.6
MGP, J as_340_2023
d) The trial Court ought to have seen that the petitioner entered into DAGPA only after dismissal of E.P.No.65/2006 and having been satisfied with the title of the JDRs and hence, the rights of the petitioner are to be perfected by refusing the claim of the plaintiff for execution of a registered sale deed in his favour.
e) The trial Court failed to observe that the plaintiff lost his claim over the suit schedule property having withdrawn the balance consideration of Rs.1,00,000/- from the Court and by filing a full satisfaction memo and hence, the claim petition of the claim petitioner has to be allowed.
f) The observation of the trial Court that the claim petitioner has to work out his remedies against JDRs but not against the DHR is erroneous and contrary to the material on record.
7. Heard both sides and perused the record including the grounds of appeal.
8. As seen from the record, the suit filed by the plaintiff against the defendant Nos.1 and 2 was decreed on 02.09.2006 with a direction to the defendants to execute registered sale deed in favour of the plaintiff within one month from the date of 7 MGP, J as_340_2023 judgment and failing which the plaintiff was at liberty to obtain registered sale deed as per law through the Court. Thereafter the plaintiff filed E.P.No.65 of 2006 and during the pendency of said execution proceedings, the defendants filed A.S.No.657 of 2006, which was dismissed by this Court on 26.06.2009. The review application filed by the defendants in A.S.No.657 of 2006 was also dismissed by this Court on 23.03.2010. The record further discloses that the claim petition filed by a third part i.e., Nitin Malani and Ganthala Prabhu claiming interest over the suit schedule property vide E.A.No.3 of 2010 was dismissed on 04.11.2015. The appeal against the dismissal of claim application vide A.S.No.5 of 2016 was dismissed as withdrawn. Though there was no direction in the judgment and decree in O.S.No.13 of 2003, it is pertinent to note that the plaintiff has deposited Rs.1,00,000/- during the pendency of the suit by way of C.C.D.746 dated 30.08.2006. The defendants filed E.A.No.4 of 2021 in E.P.No.65 of 2006 under Section 47 read with Section 151 of the Code of Civil Procedure to reject the Execution Petition on the ground that the plaintiff has withdrawn Rs.1,00,000/- in the absence of direction for deposit of balance sale consideration in the judgment and decree. The Execution Court allowed the said petition on 26.11.2021 and 8 MGP, J as_340_2023 aggrieved by the same, the plaintiff has preferred Civil Revision Petition No.2051 of 2021, wherein this Court has allowed the plea of the plaintiff on 14.03.2022 and set aside the order dated 26.11.2021.
9. It is to be seen that the plaintiff has filed E.A.No.17 of 2016 seeking refund of Rs.1,00,000/-, which was deposited by him during the pendency of the case, in view of a second deposit of Rs.2,99,251/-. As per the affidavit filed in support of the petition in E.A.No.17 of 2016, after dismissal of E.A.No.3 of 2010 on 04.11.2015 the plaintiff approached Registration Office, Shadnagar to ascertain the present Registration value of the land, wherein the registration authorities have informed him that the registration value of the suit land is Rs.2,99,251/-. Thus, the plaintiff has deposited Rs.2,99,251/- prior to filing of petition for withdrawal of Rs.1,00,000/-. Even for the sake of arguments if we consider that the plaintiff has withdrawn Rs.1,00,000/- with dishonest intention, it is to be observed that prior to his withdrawal, he has deposited before the Court a sum of Rs.2,99,251/-, which is much more than Rs.1,00,000/-, towards stamp duty and towards registration charges of the sale deed. Furthermore, this Court in order dated 14.03.2022 9 MGP, J as_340_2023 in CRP No. 2051 of 2021 observed that as on the date of filing of the execution petition, the plaintiff was not only entitled to execution of sale deed in terms of decree but also costs of Rs.1,05,660/- from the defendant Nos.1 and 2, as such there was no occasion for the defendant Nos.1 and 2 to maintain any application much less an application under Section 47 of the Code of Civil procedure. It is further observed in the said order that Executing Court failed to take note of the fact that an amount of Rs.2,99,251/- was already deposited by the plaintiff to the credit of E.P.No.65 of 2006 and if any withdrawal of Rs.1,00,000/- with or without interest is sought by the defendants, the same was available to be disbursed to them. It was also observed that any further money towards registration charges would any how be borne by the decree holder if such a situation arises. Thus, if there is any shortfall in payment of amount either to defendants or towards registration charges, there is a direction against the plaintiff to bear such costs.
10. It is pertinent to note that the defendants filed E.A.No.4 of 2022 under Section 28 (1) of the Specific Relief Act, 1963 read with Section 151 of the Code of Civil Procedure to reject the E.P.No.1403 of 2022 by rescinding/cancelling the agreement of 10 MGP, J as_340_2023 sale dated 27.05.2003 with the objection that there was no direction in the judgment and decree about the direction to the plaintiff to deposit Rs.1,00,000/- i.e., balance sale consideration and also for delivery of possession. But the said petition was dismissed by the Execution Court on 14.06.2023. In Bhupinder Kumar v. Angrej Singh 1 wherein the Honourable Supreme Court observed as under:
"21. It is clear that Section 28 gives power to the court either to extend the time for compliance with the decree or grant an order of rescission of the agreement. These powers are available to the trial court which passes the decree of specific performance. In other words, when the court passes the decree for specific performance, the contract between the parties is not extinguished. To put it clearly the decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the decree.
22. Sub-section (1) of Section 28 makes it clear that the court does not lose its jurisdiction after the grant of decree for specific performance nor it becomes functus officio. On the other hand, Section 28 gives power to the court to grant an order of rescission of the agreement and it has the power to extend the time to pay the amount or perform the conditions of decree for specific performance despite the application for rescission of the agreement/decree. In deciding an application under Section 28(1) of the Act, the court has to see all the attending circumstances including the conduct of the parties."
In view of the principle laid down in the above said 1 (2009) 8 Supreme Court Cases 766 11 MGP, J as_340_2023 decision, there is absolutely no ambiguity with regard to the jurisdiction of the Court after grant of decree for specific performance either to extent the time of pay the amount or perform the conditions of decree for specific performance despite the application for rescission of the agreement/decree. But in the case on hand, as seen from the record, though there was no specific direction from the Court in the judgment and decree about deposit of balance sale consideration, the plaintiff has deposited Rs.1,00,000/- before the Court. Even for the sake of arguments, if we presume that the trial Court has not directed the plaintiff to deposit balance sale consideration and that the plaintiff has not deposited balance sale consideration, it is surprising to note that the defendants have not raised this ground in the appeal preferred by them in A.S.No.657 of 2006. Moreover, the said aspect has been discussed by this Court in CRP No.2051 of 2021 and refused the claim of the defendants. No appeal or review has been preferred by the defendants against the said findings. Thus, the above findings have attained finality and thereby the claim petitioner is precluded to raise such ground afresh in the present appeal.
11. The contention of the claim petitioner is that after 12 MGP, J as_340_2023 dismissal of the claim application, he has entered into development agreement with the defendants and paid Rs.50,00,000/-. The E.P. No.65 of 2006 was alleged to be dismissed on 27.11.2019 for default and whereas, the defendants entered into development agreement - cum - General Power of Attorney bearing document No.2050 of 2020 dated 24.01.2020. Thus, it is clear that within two months from the dismissal of E.P.No.65 of 2006, the defendants entered into development agreement with the claim petitioner. A mere dismissal of the Execution Application cannot be a ground for the claim petitioner to enter into an agreement- cum - General Power of Attorney bearing document No.2050 of 2020 dated 24.01.2020 with defendants until and unless the said dismissal order attains finality. The said dismissal order dated 27.11.2019 has not attained finality as the said dismissal order was set aside and EP was revoked on 19.04.2021. Furthermore, as rightly observed by the Execution Court, the defendants were having knowledge that they lost the suit and as the suit was decreed granting relief in favour of the plaintiff in the year 2006. Once the defendants lost the suit, they cannot enter into any transaction for alienation of suit property in any manner, as they got no right to deal with the suit schedule 13 MGP, J as_340_2023 property. Merely because the execution petition is dismissed for default, the defendants would not get back any rights over the suit schedule property, until and unless the findings of the trial Court and Appellate Court are set aside. When the defendants have no better title, the claim petitioner, who alleged to have entered into development agreement with the defendants, cannot claim any rights over the property in dispute.
12. It is the contention of the claim petitioner that defendants have entered into development agreement with the claim petitioner and delivered possession of the lands. The learned counsel for the appellant relied upon a decision in Pallamreddy Masthan Reddy and others v. Nellore Finance Corporation and others 2, wherein the High Court for the erstwhile State of Andhra Pradesh observed as under:
"The scope of enquiry under the old Rule 58 and the circumstances in which the claim had to be allowed or rejected were indicated by the then existing Rules 59 to 61. Under the old Rule 59, the claimant or objector must adduce evidence to show that on the date of attachment he had some interest in or was possessed of the property attached. If the Court is satisfied after investigation that the property when attached was not in possession of the judgment-debtor or of some person in trust for him or in the occupency of his tenant and even if it was in possession of the judgment- debtor, such possession was not on his account or as his own property but on account of or in trust for some other person, the Court shall make an order releasing the 2 AIR 1993 Andhra Pradesh 297 14 MGP, J as_340_2023 property wholly or partly. The old Rule 61 lays down that the Court shall disallow the claim where it is satisfied that the property was, at the time of attachment, in the possession of the judgment-debtor as his own property and not on account of any other person. A person whose claim or objection was rejected, could file a suit under Rule 63 to establish the right which he claims to the property under attachment. Subject to the result of such suit, the order passed under Rule 61 is conclusive.
9. Thus, it is to be seen that under the old Rules, the scope of investigation into a claim petition was limited to the question of possession of the attached property. In such summary enquiry, questions relating to title could not be canvassed. However, the questions of title to the attached property could be agitated by way of a separate suit that may be filed by the unsuccessful party be it third party claimant or decree-holder. Though the old Rule 63 does not say in so many terms that the title to the property could also be canvassed in a suit arising out of a claim order, it is now well settled that the questions of title as well as possession will have to be gone into in such suit. Vide A. Vittal v. Rama-kistiah, AIR 1969 AP 167. The position now is that the Court is empowered to adjudicate upon the claim in a comprehensive manner covering the questions relating to right, title or interest over the property attached. The circuitous procedure of enquiry into possession in the first instance and then relegating the parties to a suit for establishing the right or title over the property is now dispensed with, The claim petition filed under Rule 58 could now be dealt with just as a suit in which questions of title and possession could be gone into. Another significant change made is that the order made in the claim petition shall be treated as a decree, against which an appeal lies."
12. It is pertinent to note that as can be seen from the appendix of evidence in the impugned order, the claim petitioner has not placed either oral or documentary evidence to substantiate his contentions that he is in possession of the property in dispute. It is also to be noticed that the claim petitioner has not even got marked the original of the development agreement executed by the defendants in his favour before the Execution Court. In the absence of any such 15 MGP, J as_340_2023 oral or documentary evidence, mere assertions of the claim petitioner that he has rights and possession over the property in dispute, cannot be considered as a gospel truth, more particularly, when the defendants remained exparte before the Execution Court in the claim petition filed by the claim petitioner.
13. In Ramjas Foundation and another v. Union of India and others 3 the Honourable Supreme Court observed as under:
"14. The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case."
14. It is pertinent to note that the claim petitioner despite having knowledge about the pendency of the execution proceedings between the plaintiff and defendants, has entered into development agreement with the defendants merely because the execution petition filed by the plaintiff was dismissed for default. As stated supra, the execution petition, 3 (2010) 14 Supreme Court Cases 38 16 MGP, J as_340_2023 which was dismissed for default, was restored. When the dismissal order has not attained finality, the claim petitioner is not supposed to enter into any development agreement with the defendants, who have successively failed in their attempts in suit, appeal, review etc. It can be seen that earlier the claim petition filed by third parties i.e., Nitin Malani and Ganthala Prabhu claiming interest over the suit schedule property vide E.A.No.3 of 2010 was dismissed on 04.11.2015. Thereafter, the present claim petitioner has filed E.A.No.5 of 2021. It appears that the defendants have been trying in one way or the other to deprive the rights of the plaintiff over the suit schedule property for the past 18 years. Furthermore, as seen from the copy of the Development Agreement - cum - GPA, the defendants nor the claim petitioner have mentioned about the case between the plaintiff and defendants. The defendants having received substantial sale consideration of Rs.12,00,000/- out of Rs.13,00,000/- from the plaintiff are not coming forward to execute the sale deed in favour of plaintiff and aggrieved by the same the plaintiff compelled to file the civil suit.
15. Though the defendants remained exparte before the Execution Court, they have filed counter in this appeal opposing 17 MGP, J as_340_2023 the claim of the plaintiff on the ground that the plaintiff has withdrawn Rs.1,00,000/- fraudulently and prayed to dispose of the appeal on merits. It is to be seen that the plaintiff has not withdrawn the amount fraudulently, as the plaintiff has withdrawn the said amount by duly seeking permission of the Court vide E.A.No.17of 2016 under Section 151 of the Code of Civil Procedure and withdrawing the same vide E.A.No.19 of 2016 filed under Rule 231 of Civil Rules of Practice. Even otherwise, as seen from the order in CRP No.2051 of 2021 it was clearly stated that Rs.2,99,251/- is available to the credit of E.P.No.65 of 2006 to be disbursed to the defendants and that any further money towards registration charges would anyhow be borne by the plaintiff. It is pertinent to note that though the defendants are agitating that the plaintiff failed to deposit balance sale consideration of Rs.1,00,000/-, they did not raise such plea before this Court in A.S.No.657 of 2006.
16. It is further contended that development agreement cum GPA occurred in the year 2020 when there was no EP is pending, as such Section 52 of the Transfer of Property Act is not applicable to the instant case. Furthermore, though the claim petitioner alleged to have entered into the development 18 MGP, J as_340_2023 agreement with the defendants only after dismissal of the execution petition, as seen from the copy of the development agreement filed before this Court, it is clear that the developers out of total consideration of Rs.2,00,00,000/-, have agreed to pay Rs.10,00,000/- and Rs.30,00,000/- as advance on 27.12.2019 and 20.01.2020 respectively to the owners i.e., the defendants. Thus, it is clear that though the development agreement was alleged to have been executed after dismissal of the execution petition, the negotiations were already taken place between the developers and owners and in pursuance of the same the developers have agreed to pay/paid an amount of Rs.10,00,000/- and Rs.30,00,000/- as advance on 27.12.2019 and 20.01.2020 respectively by which dates the execution proceedings between the plaintiff and defendants is very much subsisting and pending. Thus, it cannot be said that Section 52 of the Transfer of Property Act is not applicable to the instant case. The conduct of the defendants and the claim petitioners in making negotiations with regard to suit schedule property during the subsistence of the execution proceedings between plaintiff and defendants speaks a lot.
17. In Bhagyoday Cooperative Bank Limited v. Ravindra 19 MGP, J as_340_2023 Balkrishna Patel (died) through his LRs and others 4 the Honourable Supreme Court observed as under:
"21. The first question we have to consider is whether the dismissal of the execution petition filed by the appellant apparently on the ground of default or withdrawal of the first execution petition will result in a bar for the filing or the prosecuting of the Second execution petition. In this regard, in fact, we must notice that the learned counsel for the respondent does not seek to raise any objection as such to the contentions of the appellant that the second execution application would be maintainable provided it is within the period of limitation. We also find merit in the contentions of the appellant that the mere dismissal of the first application on the ground of default may not result in the decree holder being precluded from filing a fresh execution petition provided it is within time."
18. In view of the principle laid down above, it is clear that mere dismissal of the execution application will not preclude the decree holder from filing another executon petition, if it is within limitation. In the case on hand, the execution petition, which was dismissed for default was restored by setting aside and the dismissal order.
19. In Nancy John Lydndon v. Prabhati Lal Chowdhury and others 5 the Honourable Supreme Court observed that a Division Bench of the Madras High Court in Annapurna Patrani and others v. Lakshmana Kara and another 6 held that where in execution of decree property is attached but the petition for execution is dismissed for default and on appeal the order of 4 2022 LiveLaw (SC) 1020.
5 1987 AIR 2061 6 AIR 1950 Madras 740 20 MGP, J as_340_2023 dismissal for default is set aside, the effect of the appellate order is to restore the order attaching property and the trial Court would have to proceed with the execution application from the stage at which it had interrupted it by dismissing it for default. The appellate order restoring attachment would relate back to the date when the attachment was first made and would render invalid any alienation in the interim period. A similar view has been taken by a learned Single Judge of the Bombay High Court in Pradyut Natwarlal Shah v. Suryakant N. Sangani & Others 7.
20. It is the specific case of the defendants that the Court failed to see that DHR failed to deposit the balance sale consideration of Rs.1,00,000/-, which was originally deposited by him in the year 2006 and subsequently withdrawn under a Full Satisfaction Memo in the year 2016 vide Cheque petition No.17/2006 till the EA No.4 of 2022 was filed by the defendants seeking rescinding the agreement of sale, dated 27.05.2023 and his conduct warrants the rescinding of the agreement of sale. In L. Venkata Krishna Reddy (died) per LRs v. M. Anjappa (died) per LRs and others 8 wherein the High Court for the 7 AIR 1979 Bombay 66 8 2008 (1) ALT 260 (SB) 21 MGP, J as_340_2023 erstwhile State of Andhra Pradesh observed that the Court has discretion to extend the time stipulated for payment of balance sale consideration or rescind the contract. In Dondapati Bhasakara Rao v. Nannapaneni Siva Nageswara Rao 9 the High Court for the State of Andhra Pradesh observed that on the failure of the plaintiff in depositing the balance sale consideration before the Court, the defendant has a right to apply to the court in the same suit in which the decree was passed to have the contract rescinded. In the case on hand, the trial Court though directed the defendants to execute the sale deed in favour of the plaintiff within one month, there was no direction to the plaintiff to pay the balance sale consideration. However, the plaintiff has deposited Rs.1,00,000/- during the pendency of the suit by way of C.C.D.746 dated 30.08.2006. Moreover, though the defendants have filed a petition under Section 28 of the Act to rescind the contract, the said petition was dismissed. It is surprising to note that though the defendants have tried various methods to halt the execution proceedings, they have not filed any petition to direct the plaintiff to pay the balance sale consideration of Rs.1,00,000/-. However, the defendants are raising objection for proceeding 9 2023 (3) ALT 93 (S.B.) 22 MGP, J as_340_2023 with the execution proceedings on the ground that the plaintiff has not deposited balance sale consideration.
21. In Usha Singh v. Dina Ram and others 10 the Honourable Apex Court observed as under:
"21. We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum. In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.
22. For invoking Rule 102, it is enough for the decree holder to show that the person resisting the possession or offering obstruction is claiming his title to the property after the institution of the suit in which decree was passed and sought to be executed against the judgment debtor. If the said condition is fulfilled, the case falls within the mischief of Rule 102 and such applicant cannot place reliance either on Rule 98 or Rule 100 of Order XXI."
22. In view of the principle laid down in the above said decision, it is clearly held that the claim petitioner, who is claiming his rights through judgment debtor, is not entitled to get his claim adjudicated during the pendency of the execution proceedings.
23. It is the contention of the claim petitioner that he is a bonafide purchaser of the suit schedule property having been entered into a registered development agreement - cum - GPA. 10 (2008) 7 Supreme Court Cases 144 23 MGP, J as_340_2023 In Suraj Lamps and Industries Private Limited v. State of Harayana and others 11 the Honourable Supreme Court observed as under:
"16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
24. In Konkana Ravinder Goud and others v. Bhavanarish Cooperative House Building Society, Hyderabad and others 12 wherein the High Court for the erstwhile State of Andhra Pradesh observed as under:
"62. Agreement to sell does not convey any right, title or interest in the property. Supreme Court in K. Seetharama Reddy and Anr. v. Hassan Ali Khan, , examined the effect of execution of an agreement of sale. It was argued before the Supreme Court that in India also like England on execution of agreement of sale equitable interest in the property is created. Repelling this argument, it was held that the English doctrine of conversion of realty into personality cannot be bodily lifted from its native English soil and transplanted in statute- bound India law. But, we have to notice that many of the principles of 11 2009 (7) SCC 363 12 2003 (5) ALD 654 (DB) 24 MGP, J as_340_2023 English Equity have taken statutory form in India and have been incorporated in occasional provisions of various Indian statutes such as the Indian Trusts Act, the Specific Relief Act, Transfer of Property Act etc. and where a question of interpretation of such Equity based statutory provisions arises we will be well justified in seeking aid from the Equity source. The concept and creation of duality of ownership, legal and equitable, on the execution of an agreement to convey immoveable property, as understood in England is alien to Indian Law, which recognises one owner i.e. the legal owner. Relying upon the decisions in Rambaran Prosad's case (supra) and Narandas Karsondas case (supra) and, referring to Section 54 of Transfer of Property Act, Apex Court held that ultimate paragraph of Section 54 of the Transfer of Property Act enunciates that a contract of the sale of immovable property does not, of itself, create any interest in or charge on such property. The ultimate and penultimate paragraphs of Section 40 of the Transfer of Property Act create an obligation, annexed to the ownership of immovable property, not amounting an interest in the property. Thus, the only right a person acquires by execution of agreement is not an interest in the property but a right to seek enforcement of the agreement by resorting to provisions of the Specific Relief Act and filing a suit to enforce the agreement of sale."
25. In view of the principle laid down in the above said decisions, it is clear that a person cannot acquire rights over the property merely by execution of agreement of sale.
26. In Smt. Ved Kumari (dead through her LR) Dr. Vijay Agarwal v. Municipal Corporation of Delhi Through its Commissioner 13 the Honourable Supreme Court observed as under:
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2023 Live Law (SC) 71 25 MGP, J as_340_2023 "15. In view of the settled legal position, as noted (supra), it was the duty of the Executing Court to issue warrant of possession for effecting physical delivery of the suit land to the decree-holder in terms of suit schedule property and if any resistance is offered by any stranger to the decree, the same be adjudicated upon in accordance with Rules 97 to 101 of Order XXI of the CPC. The Executing Court could not have dismissed the execution petition by treating the decree to be inexecutable merely on the basis that the decree-holder has lost possession to a third party/encroacher. If this is allowed to happen, every judgment-
debtor who is in possession of the immoveable property till the decree is passed, shall hand over possession to a third party to defeat the decree-holder's right and entitlement to enjoy the fruits of litigation and this may continue indefinitely and no decree for immovable property can be executed."
27. In view of the principle laid down in the above said decision it is clear that execution petition cannot be dismissed merely because the decree holder has lost possession to a third party. It is also settled law that Executing Court can go into the questions that are limited to execution of decree and can never go behind the decree.
28. In view of the above facts and circumstances, this Court is of the opinion that the Executing Court has rightly dismissed the claim application as the claimant could not establish any of the grounds through convincing and cogent evidence that she is the rightful owner of the suit schedule property having purchased the same from the rightful owner of the property. The Executing Court has rightly considered all the aspects and arrived to an appropriate conclusion in dismissing the claim 26 MGP, J as_340_2023 application. Therefore, viewed from any angle there is no illegality or irregularity committed by the Executing Court while passing the impugned order, thus, the appeal is devoid of merits and it is liable to be dismissed.
29. In the result, this appeal is dismissed. There shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M.G. PRIYADARSINI Date: 26.04.2024 Note: 1) LR Copy to be marked.
2) Issue cc within three days.
B/o. AS