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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

(2009) 8 Supreme Court Cases 766

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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

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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

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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

AIR 1993 Andhra Pradesh 297

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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

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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

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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

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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

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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

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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

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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)

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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.)

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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

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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)

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:

2023 Live Law (SC) 71

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.