Punjab-Haryana High Court
Palwinder Singh vs Sandeep Kaur on 15 December, 2022
CR-2377-2020 --1--
106 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-2377-2020
Decided on:-15.12.2022
Palwinder Singh ...Petitioner.
vs.
Sandeep Kaur ....Respondent.
CORAM:HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. Vaibhav Sehgal, Advocate,
for the petitioner.
*****
HARKESH MANUJA J. (Oral)
By way of present revision petition, challenge has been made
to an order dated 21.01.2020 (Annexure P-4) passed by the Executing
Court, whereby the execution application filed at the instance of petitioner-
plaintiff (decree-holder) was dismissed.
2. Based on an agreement to sell dated 12.07.2012, pertaining to
the suit property, the petitioner-plaintiff filed a suit for possession by way of
specific performance. The said suit was filed on 31.05.2013 and was
decreed on 17.04.2018, followed by filing of an exection application by the
petitioner-plaintiff on 08.06.2018. While execution proceedings were going
on, the Sub-Registrar of the concerned area submitted his report before the
Executing Court to the effect that the land in question already stood
transferred in favour of one Ranjit Kaur wife of Malkeet Singh, vide sale
deed dated 20.12.2012, executed at the instance of respondent-judgment
debtor. Based on the said report dated 26.11.2019, the Executing Court vide
order dated 21.01.2020, dismissed the execution application by recording
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CR-2377-2020 --2--
that the same was rendered infructuous. It is the aforesaid order dated
21.01.2020, which has been impugned herein by way of present revision
petition.
3. Learned counsel for the petitioner submits that the sale of suit
property after execution of the agreement to sell dated 12.07.2012 by
respondent/judgment debtor in favour of petitioner/plaintiff (decree-holder)
would not even bind or affect the rights of the petitioner under the decree
passed in his favour. He further submits that the learned Executing Court
committed an error of law while dismissing the execution application,
merely, on the ground that the property in question already stood sold prior
to filing of the suit in favour of a third party vide sale deed dated
20.12.2012.
4. Notice of motion in the present revision petition was issued
vide order dated 19.09.2022.
Though, office report shows that dasti notice issued to
respondent not received back served or otherwise, however, the dasti
summons along with service report dated 13.12.2022 have been produced in
the Court today by learned counsel for the petitioner, which are taken on
record, to record that the respondent stands served. However, no one
appears on her behalf.
5. I have heard learned counsel for the petitioner as well as gone
through the record, I find substance in the submissions made on behalf of
the petitioner.
6. Once, by virtue of judgment and decree dated 17.04.2018, it
was proved on record that the agreement to sell dated 12.07.2012 was
validly executed between the petitioner and respondent as regards the
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CR-2377-2020 --3--
property in question, any subsequent alienation/sale deed of the same at the
instance of respondent was always governed and regulated by the rights
confered upon the petitioner-plaintiff under the agreement to sell dated
12.07.2012 as regards its enforcement as per law. The Executing Court
failed to appreciate the fact that strictly speaking principles of lis pendens as
provided under Section 52 of the Transfer of Property Act, 1882, may not
even apply to the facts and circumstances of the present case, the respondent
having sold the suit property in favour of third party even prior to filing of
the suit. In fact, the respondent/defendant having entered into an agreement
to sell dated 12.07.2012 with the petitioner, had no right to alienate the suit
property to any third party. In the present case, suit was filed on 31.05.2013
and the same was decreed in favour of petitioner-plaintiff vide judgment
and decree dated 17.04.2018 by recording him to be ready and willing to
perform his part of agreement, which was never challenged at the instance
of respondent/judgment debtor in any subsequent proceedings/appeal.
7. Still further, in the absence of objections having been filed at
the instance of so called third party i.e. the purchaser from the
respondent/judgment debtor, even having purchased the suit property, prior
to the filing of present suit, the executing court exceeded its jurisdiction
while rendering the execution proceedings being infructuous. The only
protection to the persons having purchased suit property subsequent to
execution of agreement to sell has been provided under Section 19(b) of the
Specific Relief Act, 1963 (for brevity "1963 Act"), the same even enjoins
the subsequent purchaser/transferee to establish that the transfer was made
in good faith for value and without notice of the original contract. Section
19(b) of the 1963 Act reads as under:-
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CR-2377-2020 --4--
19. Relief against parties and persons claiming under
them by subsequent title.-Except as otherwise provided
by this Chapter, specific performance of a contract
may be enforced against_
.... .... ....
(b) any other person claiming under him by a title
arising subsequently to the contract, except a
transferee for value who has paid his money in good
faith and without notice of the original contract;"
8. In the present case, there is nothing on record to suggest that
the subsequent transferee ever approached the executing court, invoking his
rights under Section 19(b) of the 1963 Act.
9. A perusal of Section 19(b) of the 1963 Act shows that the same
does not permit the vendor to unilaterally terminate the prior agreement of
sale and to alienate the property and thus, the purchasers cannot be made to
suffer on this account for no fault of his.
10. In view of the discussion made herein above, the present
revision petition is allowed, the impugned order dated 21.01.2020 is ordered
to be set aside, directing the Executing Court to proceed with the execution
proceedings based on the judgment and decree dated 17.04.2018 passed in
favour of petitioner/plaintiff/decre-holder, in accordance with law.
11. Disposed of accordingly.
12. Pending application(s), if any stand disposed of.
15.12.2022 (HARKESH MANUJA)
sonika JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/ No
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