Motiram Vitthalrao Thombre vs Alka Harihar Bhagadkar And ...
2022 Latest Caselaw 11885 Bom

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                                  1

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                 NAGPUR BENCH : NAGPUR.



                WRIT PETITION NO. 6766 OF 2019.

Motiram Vitthalrao Thombre,
Aged about 63 years, Occupation - Service,
resident of Laxmi Nagar, Amravati
Taluq and District Amravati.               ...      PETITIONER.


                              VERSUS


1.Alka Harihar Bhagadkar,
Aged about 48 years, Occupation - Household,
resident of Behind Gajanan Maharaj
Mandir, Sai Nagar, Amravati,
Taluq and District Amravati.

2.Sau.Rekha Ramlal Bhaladhare,
Aged about 58 years, Occupation Household,
resident of Gurudeo Nagar,
Amravati, Back of Shitla Mata
Mandir, Kathora Road, Amravati,
Taluq and District Amravati.           ...       RESPONDENTS.

                       ----------------------------
           Mr. Bhushan Dafle, Advocate for the Petitioner.
           Mr.R.R. Vyas, Advocate for Respondent No.1.
                     Respondent No.2 Served.
                       ----------------------------

                                 CORAM : VINAY JOSHI, J.

                                 DATE    : NOVEMBER 21, 2022.

Rgd.
 Judgment                                                          wp6766.19





ORAL JUDGMENT :

Heard learned Counsel for the parties. Considering the

issue involved in the Writ Petition and by consent of the learned

Counsel appearing for the respective parties, the matter is taken up

for final disposal by issuing Rule, making the same returnable

forthwith.

2. The petitioner, a third party raises a challenge to the

order dated 17.09.2018 passed in Special Darkhast No.30/2012, by

which petitioners' application filed under Order XXI Rule 97 of the

Code of Civil Procedure is decided.

3. A suit for specific performance bearing Special Civil Suit

No.82/2004 was filed by respondent no.1/plaintiff, against

respondent no.2/sole defendant. The said suit was filed on

07.04.2004, seeking specific performance of an agreement dated

15.11.2003. The trial Court has decreed the suit, thereby directing

the defendant to execute sale deed on deposit of remaining

consideration amount. The said decree for specific performance was

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passed on 13.02.2009. Pursuant to said decree, respondent no.1/

plaintiff has filed execution proceeding bearing S.D.No.30/2012. It

is the case of petitioner that the sole defendant - Rekha had already

sold the suit property to one Shri Pathak vide registered sale deed

dated 19.03.2004, who in turn sold the suit property to the

petitioner / objector, vide registered Sale deed dated 13.05.2005.

The petitioner came in possession of the suit property by virtue of

the registered sale deed.

4. The petitioner was served with the notice in execution

proceeding in terms of Order XXI Rule 22 of the Code. He filed an

application in terms of Order XXI Rule 97 of the Code bearing

R.M.J.C.No.146/2017 for protecting his possession by claiming

independent right. Moreover, he has filed objection [Exh.37] in the

execution proceeding with a limited request for not to issue warrant

of possession till his objection under Order XXI Rule 97 of the Code

is decided.

5. It is apparent, rather not disputed that the subject

property was already sold to the objectors predecessor Pathak, even

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prior to filing of the Special Civil Suit No.82/2004, therefore, the

independent right claimed by the objector through his predecessor

requires to be adjudicated. Other side has objected the petition by

claiming bar of lis pendens in terms of Section 52 of the Transfer of

Property Act along with Order XXI Rule 102 of the Code. It is the

contention of the respondent that the sale transaction in favour of

the petitioner is hit by the doctrine of lis pendens, therefore, he

cannot seek stay to the possession decree. Moreover, it is contended

that the possession decree was passed in the year 2009, and till date

there is no execution.

6. The learned Counsel for the respondent has placed

reliance on the decision of this Court in case of Swastik Builders,

Nagpur and another .vrs. Dr.Shobha Bhaskar Kaore and others -

2021 [4] Mh.L.J. 397. However, the said decision would not assist

his cause, since in that case the property was purchased after passing

of the decree. The case here is more worst, as even before institution

of suit, the property was sold to third party. Having regard to above

facts, the trial Court ought to have stayed the proceeding till the

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application under Order XXI Rule 97 of the Code is decided.

7. In view of above, Writ Petition is allowed and disposed of.

The impugned order dated 17.09.2018 passed by the Joint Civil

Judge, Senior Division, Amravati below Application Exh.37 in Special

Darkhast No.30/2012 is quashed and set aside. Petitioners'

application at Exh.37 filed in Special Darkhast is allowed, whereby

the execution of possession warrant is stayed till the decision of

application under Order XXI Rule 97 of the Code.

8. Rule is made absolute in aforesaid terms with no order as

to cost.

JUDGE

Rgd.

Signed By:RAKESH GANESHLAL DHURIYA Private Secretary High Court of Bombay, at Nagpur Signing Date:25.11.2022 10:39