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Judgment
C.R. Kumaraswamy, J.—RFA No. 291/2012 is filed under Order XLI Rules-1 and 2 read with Section 96 of Code of Civil Procedure against the judgment and decree dated 23.01.2012 passed in Ex. P. No. 15176/1999 on the file of the XXVIII Additional City Civil Judge, Mayo Hall, Bangalore, allowing the application filed under Section 144 read with Section 151 of the Code of Civil Procedure.
RFA No. 220/2012 is filed under Section 96 read with Order XLI Rule-1 of Code of Civil Procedure against the order dated 23.01.2012 passed in Ex. P. No. 15176/1999 on the file of the XXVIII Additional City Civil Judge (CCH-29), Mayo Hall Unit, Bangalore, rejecting the application filed under order XXI Rules 97, 98, 101 read with Section 151 of the Code of Civil Procedure.
The brief background of the case of the appellant is as under:
The second respondent in RFA No. 291/2012-M/s. Rhone-Poulenc Agro Chemicals (India) Limited-plaintiff instituted a suit against the first respondent in RFA No. 291/2012-M/s. Mysore Crop Care (P) Limited-defendant in O.S. No. 11243/1998 before the Court below for recovery of a sum of Rs. 3,63,971-24 with future interest at 24% per annum from the date of suit till realisation and costs of the proceedings. In the said suit, an ex-parte judgment and decree was passed on 8.7.1999, decreeing the suit for a sum of Rs. 3,63,971.24 with costs.
Subsequent to the said decree, the plaintiff filed an Execution Petition in Ex. Pet. No. 15176/1999 for recovery of a total sum of Rs. 4,71,035/- before the Court of City Civil Judge, Mayohall, Bangalore.
In the said Execution proceedings, the property of the defendant, viz. the property bearing No. 885, Post Office Road, Gokulam III Stage, V.V. Mohalla, Mysore - 570 002, was sold in public auction on 9.6.2000 for Rs. 8,95,000/- wherein one Sri B.S. Raghavendra Rao was declared as the highest bidder. The Court below confirmed the sale vide order dated 24.6.2000. Subsequently, the Court below issued Sale Certificate in favour of Sri B.S. Raghavendra Rao on 3.8.2000. The Court below vide order dated 8.12.2000 directed to issue a cheque for a sum of Rs. 5,31,879/- in favour of the decree holder.
Subsequently, the auction purchaser filed an application under Order XXI Rule 95 of Code of Civil Procedure seeking delivery of property which was in possession of the judgment debtor and the delivery warrant came to be issued. It was duly executed on 12.10.2001 and the property was delivered to the auction purchaser.
Subsequent to delivery of possession in favour of the auction purchaser, the first respondent-defendant appeared before the Court through his counsel.
The State Bank of Mysore, Jayanagar Branch, Mysore, filed an application under Order XXI Rule 89 read with Section 151 of the Code of Civil Procedure seeking to set aside the sale proclamation of the schedule property and also filed a memo before the Court below for the payment of balance sale consideration amount in the hands of the Court in their favour. The judgment debtor-defendant filed his objections to the said application clearly contending that there is no irregularity in the auction sale and prayed that the balance sale proceeds shall be handed over to him.
In the meanwhile, the judgment debtor filed a Misc. Petition in Misc. Case No. 15228/2001 seeking to set-aside the ex-parte decree passed against him in O.S. No. 11243/1998. The said Misc. Petition was allowed on 12.3.2003 and O.S. No. 11243/1998 came to be restored.
It is the case of the appellant that subsequent to execution of Sale Certificate in favour of the auction purchaser-Sri B.S. Raghavendra Rao, the auction purchaser has taken possession of the property through the Executing Court and khatha was changed in his name and he was in peaceful possession and enjoyment of the property till 2.12.2005. The auction purchaser sold the schedule property in favour of Sri K.H. Raghavendra S/o. K.B. Hanumantha Rao, R/o #683, 12th main, T.K. Layout, Mysore, through a registered sale deed dated 02.12.2005 and delivered possession of the property. The said K.H. Raghavendra was in possession and enjoyment of the same and khatha was changed in his name. The appellant purchased the schedule property from his vendor, Sri K.H. Raghavendra S/o. K.B. Hanumantha Rao, through a registered sale deed dated 30.12.2005 and ever since the date of purchase, he is in possession and enjoyment of the property as an absolute owner. Khatha has been changed in his name and he has been paying tax to the Mysore City Corporation. The appellant is residing in the house existing in the schedule property with his family members.
Subsequently, the judgment debtor filed an application Under Section 144 read with Section 151 of Code of Civil Procedure before the Executing Court seeking to recall the orders and for re-delivery of possession in respect of the petition schedule property. The Executing Court, by an order dated 4.12.2008, allowed the said application and recalled the sale notice, sale proclamation, sale warrant, confirmation of sale, sale certificate, delivery warrant and the order dated 3.11.2001, with liberty to the judgment debtor to take action as per law.
Thereafter, the appellant herein, who is the subsequent purchaser, approached this Hon''ble court in W.P. No. 8193/2010 questioning the order dated 4.12.2008 passed by the Executing Court and the said writ petition was withdrawn by him with liberty to take such course of remedy available in law.
Thereafter, the appellant herein filed a review application under section 114 of the Code of Civil Procedure before the Executing Court seeking to review the order dated 4.12.2008.
The appellant herein filed an application before the Executing Court under Order XXI Rules 97, 98 and 101 read with Section 151 of the Code of Civil Procedure as hereunder:
The above execution petition is filed by the Decree holder for recovery of decreetal amount in O.S. No. 11243/1998. Due to the default in satisfying the decreetal amount, the Executing Court sold the schedule property in public auction and declared one Sri B.S. Raghavendra Rao S/o. B.R. Sreenivasa Murthy, R/o. No. 131, 2nd Main Road, Jayanagar, Mysore-14, as the highest bidder. The auction purchaser purchased the property in Public Auction for a consideration of Rs. 8,95,000/- and the said sale was confirmed by the Executing Court and Sale Certificate was issued in favour of the said auction purchaser. Subsequent to execution of Sale Certificate in favour of Sri B.S. Raghavendra Rao, he has taken possession of the property through the Executing Court and khatha was changed in his name and he was in peaceful possession and enjoyment of the property till 02.12.2005. The auction purchaser-Sri B.S. Raghavendra Rao sold the property in favour of Sri K.H. Raghavendra S/o. K.B. Hanumantha Rao, R/o #683, 12th main, T.K. Layout, Mysore, through a registered sale deed dated 02.12.2005 and delivered possession of the schedule property. The said K.H. Raghavendra was in possession and enjoyment of the same and khatha was changed in his name. It is stated that the appellant purchased the schedule property from his vendor, Sri K.H. Raghavendra S/o. K.B. Hanumantha Rao, through a registered sale deed dated 30.12.2005 and ever since the date of purchase, he is in possession and enjoyment of the property as an absolute owner. Khatha is changed in his name and he has been paying the tax to Mysore City Corporation. He also stated that he was residing in the house existing in the schedule property with his family members. Such being the case, on 18.2.2009, the Judgment Debtor came before the house and shown the warrant to hand over the possession of the property. But the warrant was in the name of auction purchaser. He does not know about any proceedings pending before the Court and he was not made as a party to the proceedings.
It was also stated that the Judgment Debtor has not disclosed the subsequent sale made by the auction purchaser before the Executing Court. The Judgment Debtor has not made any application for cancellation of auction sale as per Order XXI Rule 89 of the Code of Civil Procedure within the stipulated period. He has suppressed the fact about the subsequent sale even though the same has been entered in the encumbrance certificate.
It is stated that the appellant has availed housing loan from the Bank and developed the house and he has been enjoying the property as the absolute owner. The Judgment Debtor is illegally trying to dispossess him by obtaining delivery warrant against the auction purchaser. He is the rightful owner in enjoyment of the property for more than three years and his right will be prejudiced if the delivery warrant is not re-called.
It is also stated that the Judgment Debtor has lost his right, title and possession over the schedule property by virtue of the auction sale and subsequent confirmation of sale by the Executing Court. If at all, the judgment debtor has any grievance, he has to claim the same against the decree holder in a separate proceedings and he is estopped from claiming re-delivery of the property in the present Execution petition. The Judgment Debtor has not approached the Court with clean hands and he is not entitled for any relief, since he has suppressed the material facts and played fraud on the Court, while securing the delivery warrant in the execution petition.
It is also stated that he is a bonafide purchaser of the property for valuable consideration and his entire life-time earnings has been invested in the property and that he has availed loan from the bank to purchase the schedule property.
The judgment debtor filed an application under Section 144 read with Section 151 of the Code of Civil Procedure before the Executing Court as under:
He stated that he is the Judgment-Debtor in the Execution Petition. The decree-holder-plaintiff filed O.S. No. 11243/1998 on 12.10.1998 against him for the recovery of a sum of Rs. 3,63,971.24 together with interest at 24% per annum till the date of realisation and cost of the suit and obtained an ex-parte judgment and decree from the Additional City Civil Court, Mayo Hall, Bangalore, on 8.7.1999. The decree holder filed an execution case and obtained all the reliefs even without service of Court notices on him. After he came to know about the said proceedings on 12.10.2001, he filed Misc. Case No. 15228/2001 on 17.10.2001 seeking to set-aside the ex-parte judgment and decree and the same was allowed on 12.3.2003.
He stated that on 23.07.2003, he filed an application under Section 151 of Code of Civil Procedure along with an affidavit in O.S. No. 11243/1998 before the Additional City Civil Judge (CCH No. 29), Mayo Hall, Bangalore, to reopen the case and to prosecute the same and the same was allowed. The Court issued summons to the plaintiff but the plaintiff remained absent in spite of service of Court summons. The Court below granted sufficient opportunities to the plaintiff to prosecute the said suit, but the plaintiff did not appear and prosecute the suit. Hence, the Court below dismissed the suit for default on 24.08.2005.
He stated that on 22.10.2005, he filed an interlocutory application under Section 144 read with Section 151 of Code of Civil Procedure in Execution Petition seeking to recall all the orders passed. After hearing the arguments on the said application, the Executing Court recalled the orders by an order dated 4.12.2008. The physical possession of the schedule property has to be taken back from the auction purchaser under the above circumstances. Hence, he prayed to pass necessary orders directing the auction purchaser to re-deliver vacant possession of the schedule property to him with the help of police, since the auction purchaser is very much strong, both economically and politically.
The finding of the Trial Court in Execution Petition is as under:
"The suit in O.S. No. 11243/1998 was filed for recovery of the amount due to the plaintiff against the defendant which came to be decreed. Challenging the said decree, Misc. No. 15228/2001 was filed by the defendant for setting aside the ex-parte decree passed on 08.07.1999. The Trial Court on 12.03.2003 allowed the Misc. Petition by setting aside the ex-parte decree and restoring the suit in O.S. No. 11243/1998. In view of setting aside of the decree in the above said Misc. No. 15228/2001, nothing remained to be executed in Ex. P.15176/1999 and the Execution Petition filed for executing the decree cannot be continued. The Judgment Debtor in this case has filed an application under Section 144 of the CPC for recalling the orders passed by the Trial court in respect of issuance of sale notice, sale proclamation, confirmation of sale and issuance of sale certificate including delivery warrant. In view of setting aside of the entire decree in Misc. 15228/2001, the Court below on 04.12.2008, passed an order allowing the application in part and recalling issuance of sale notice, sale proclamation, confirmation of sale, sale certificate and delivery warrant. Challenging the said order dated 04.12.2008, the applicant-objector filed W.P. No. 8193/2010 before the High Court, however after addressing arguments at length, he sought for withdrawal of writ petition by filing a memo. Accordingly, the said writ petition was dismissed. Thereby, it is very clear that the order dated 04.12.2008 has remained unchallenged. Accordingly, the sale certificate and delivery warrant were recalled. When the very decree, under which the sale of the suit schedule property was taken place, was set-aside by the Court in Misc. No. 15228/2001, neither the auction purchaser nor the subsequent purchasers acquire any right over the suit schedule property. If at all the obstructer is in possession of the suit schedule property, he is liable to deliver possession of the suit schedule property in favour of Judgment Debtor under Section 144 of the CPC. Therefore, the application filed by the obstructer under Order 21 Rules 97 and 98 of the CPC does not survive for consideration, in view of setting aside the decree passed in O.S. No. 11243/1998.
The Executing Court has rejected the application filed by the Obstructer under Order 21 Rule 97 CPC dated 20.02.2009 and allowed the application filed by the Judgment Debtor under Section 144 of the CPC dated 03.01.2009. The Executing Court has further ordered to restore possession of the suit schedule property in favour of the Judgment Debtor and closed the Execution Petition."
Feeling aggrieved by the common order passed by the trial Court in Ex. Petition No. 15176/1999 dated 23.1.2012, the appellant has preferred both the appeals.
Sri S.P. Kulkarni, learned counsel for the appellant in both the appeals, submits that the appellant is a bonafide purchaser. The trial Court has not assigned any reasons while passing the impugned common order. The appellant is a stranger to the proceedings. He has purchased the property from Sri K.H. Raghavendra. The said Sri K.H. Raghavendra has purchased the property from Sri B.S. Raghavendra Rao, who is none other than the auction purchaser. Sri B.S. Raghavendra Rao is also a stranger to the proceedings. The trial Court has decided the application filed by the judgment debtor under Section 144 of the Code of Civil Procedure and the application filed by the appellant herein under Order XXI Rules 97, 98, 101 read with Section 151 of the Code of Civil Procedure without proper application of mind. The Court below has passed the order under Section 144 of the Code of Civil Procedure without issuing notice to the appellant herein.
The learned counsel for the appellant relied on the following rulings:
"(i) In the case of Bhim Rao Swami Rao Desai Vs. Laxmibai and Another, AIR 1966 Kar 112 : (1965) ILR (Kar) 358 : (1965) 1 MysLJ 786 , wherein the Head note reads as under:
"Civil P.C. (1908) Ss. 144(1) , 2(2), 96 and 115-Principle underlying Section-Variation or reversal of decree or order-Need not be by superior court in appeal or revision-Ex-parte decree set aside-Defendant entitled to apply under S. 144(1)-Order on such application is decree within Section 2(2)-Proper remedy of aggrieved party is to file appeal and not revision."
(ii) In the case of Janak Raj Vs. Gurdial Singh and Another, AIR 1967 SC 608 : (1967) 2 SCR 77 ; wherein the Head Note reads as under:
"Civil P.C. (1908), O. 21, R. 89, 92 and 94, S. 65-Sale of house in execution of ex-parte money decree-Judgment debtor not applying under R.89 for setting aside sale but applying for setting aside decree-Reversal of decree-After reversal, application by auction-purchaser under R.92 for confirmation of sale-Held, sale must be confirmed notwithstanding reversal of decree after sale-Title of purchaser related back to date of sale and not to that of its confirmation. L.P.A. No. 20 of 1965, D/- 24.12.1965 (Punj), Baburam Lal and Another Vs. Debdas Lala, AIR 1959 Cal 73 and AIR 1920 Cal. 99 , Disting."
(iii) In the case of Chinnamal and others Vs. P. Arumugham and another, AIR 1990 SC 1828 : (1990) 1 JT 51 : (1990) 1 SCALE 43 : (1990) 1 SCC 513 : (1990) 1 SCR 78 ; wherein paragraph Nos. 10 and 11 read as under:
"10. There is thus a distinction maintained between the decree holder who purchases the property in execution of his own decree which is afterwards modified or reversed, and an auction purchaser who is not party to the decree. Where the purchaser is the decree holder, he is bound to restore the property to the judgment debtor by way of restitution but not a stranger auction purchaser. The latter remains unaffected and does not lose title to the property by subsequent reversal or modification of the decree. The Courts have held that he could retain the property since he is a bona fide purchaser. This principle is also based on the premise that he is not bound to enquire into correctness of the judgment or decree sought to be executed. He is thus distinguished from an eo nomine party to the litigation.
xxx xxx xxx If the evidence indicates that he had no such knowledge he would be entitled to retain the property purchased being a bona fide purchaser and his title to the property remains unaffected by subsequent reversal of the decree. The Court by all means should protect his purchase. But if it is shown by evidence that he was aware of the pending appeal against the decree when he purchased the property, it would be inappropriate to term him as a bona fide purchaser. In such a case the Court also cannot assume that he was a bona fide or innocent purchaser for giving him protection against restitution. No assumption could be made contrary to the facts and circumstances of the case and any such assumption would be wrong and uncalled for."
(iv) In the case of Padanathil Rugmini Amma Vs. P.K. Abdulla, (1996) 1 AD 658 : AIR 1996 SC 1204 : (1996) 1 JT 381 : (1996) 1 SCALE 359 : (1996) 7 SCC 668 : (1996) 1 SCR 651 : (1996) 1 UJ 257 ; wherein, it is held thus:
"An assignee from a decree-holder auction purchaser cannot be equated with a bona fide purchaser for value without notice. The distinction between a stranger who purchases at an auction and an assignee from a decree-holder purchaser at an auction sale is quite clear. Persons who purchase at a Court auction who are strangers to the decree are afforded protection by the Court because they are not in any way connected with the decree. Unless they are assured of title; the Court auction would not fetch a good price and would be detrimental to the decree-holder. The policy, therefore, is to protect such purchasers. This policy cannot extend to those outsiders who do not purchase at a Court auction. When outsiders purchase from a decree-holder who is an auction purchaser clearly their title is dependant upon the title of decree-holder auction purchaser. It is a defeasible title liable to be defeated if the decree is set aside. A person who takes an assignment of the property from such a purchaser is expected to be aware of the defeasibility of the title of his assignor. He has not purchased the property through the Court at all. There is, therefore, no question of the Court extending any protection to him. The doctrine of a bona fide purchaser for value also cannot extend to such an outsider who derives his title through a decree-holder auction purchaser. He is aware or is expected to be aware of the nature of the title derived by his seller who is a decree-holder auction purchaser. The reasons which prompt the Courts to protect strangers who purchase at Court auction sales also do not apply to assignees or purchasers from a decree-holder auction purchaser. They purchase outside the Court system and cannot expect any protection from the Court. Their title is liable to be defeated if the title of their seller or assignor is defeated."
(v) In the case of Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, AIR 1997 SC 856 : (1997) 1 JT 641 : (1997) 1 SCALE 437 : (1997) 3 SCC 694 : (1997) 1 SCR 463 ; wherein Head Note ''A'' reads as under:
"Civil P.C.(5 of 1908), O. 21, Rr. 97, 99 -Execution-Decree for possession - Obstruction by stranger-Cannot be said that he can get his claim adjudicated only after losing possession-Stranger can get his claim adjudicated even prior to losing possession to decree-holder."
(vi) In the case of Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, (1998) 3 AD 249 : AIR 1998 SC 1754 : (1998) 3 JT 1 : (1998) 119 PLR 519 : (1998) 2 SCALE 550 : (1998) 3 SCC 723 : (1998) 2 SCR 587 : (1998) 1 UJ 521 : (1998) AIRSCW 1544 : (1998) 3 Supreme 555 ; wherein Head Note ''A'' reads as under:
"Civil P.C.(5 of 1908), O.21 Rr. 35, 97, 101-Execution of decree-Power of executing Court -Scope of-Resistance to execution of decree by third party - Even that can be looked into if adjudication is warranted".
(vii) In the case of Shreenath and Another Vs. Rajesh and Others, (1998) 3 AD 624 : AIR 1998 SC 1827 : (1998) 3 JT 244 : (1998) 2 SCALE 725 : (1998) 4 SCC 543 : (1998) 2 SCR 709 : (1998) AIRSCW 1619 : (1998) 4 Supreme 155 ; wherein Head Notes ''A'' and ''B'' read as under:
"(A) Interpretation of Statutes - Procedural law - Two views possible - One which curtail the procedure without eluding justice to be adopted.
(B) Civil P.C. (5 of 1908), O.21, R.97 -Decree for immovable property - Execution - Third party in possession claiming independent right as tenant - Can object and get his claim adjudicated when sought to be dispossessed by decree holder -He need not wait until he is dispossessed."
(viii) In the case of N.S.S. NARAYANA SHARMA AND OTHERS v. M/S.GOLDSTONE EXPORTS (P) LTD. AND OTHERS reported in AIR 2002 SCC 251; wherein Head Note reads as under:
"Civil P.C. (5 of 1908), S. 47, O.21, Rr. 99, 101 (as inserted in 1976) - Execution of decree for possession of immovable property - Resistance or obstruction to possession made in execution - All relevant issues arising in the matter on an application under O.21, R. 97 or R. 99 - Shall be determined by Executing Court and not by separate suit."
(ix) In the case of Sri Venkatarayappa Vs. Sri G. Muniyappa and Others, AIR 2008 Kar 163 : (2008) ILR (Kar) 3553 : (2008) 3 KCCR 1551 ; wherein Head Note reads as under:
"CODE OF CIVIL PROCEDURE, 1908-Order 21 - Execution of Decrees and Orders -Order 21 Rules 97, 101 and 103 - Application Under - Obstruction to Execution of a Decree - Questions to be determined by the Executing Court - HELD, An Application filed under Order 21 Rule 97, must be considered in accordance with the provisions of Order 21 Rule 101 CPC - The scope of such an application is quite wide and it is to be treated as though it is a title Suit - When the objector files an application under Order 21 Rule 97 claiming independent title to the property in question, the adjudication therein tantamount to a Decree -FURTHER HELD, when a person claiming title to the property in his possession obstructing the attempt by the decree holder to dispossess him from the suit property, the Executing Court is competent to consider all questions raised by the person offering obstruction against execution of the decree and pass appropriate orders as per provisions of Order 21 Rule 103 of CPC - The said order passed by the Executing Court has to be treated as a decree, as the proceedings under Order 21 Rule 97 is akin to a suit - The Order of the Executing Court posting the case for adjudication of the claim of the Respondent/Objector on I.A. No. 6 is justified."
(x) In the case of RAMAKRISHNA v. SPECIAL LAND ACQUISITION OFFICER reported in I.L.R. 1995 KAR 2695; wherein Head Note reads as under:
"CIVIL PROCEDURE CODE, 1908 (Central Act No. 5 of 1908) - Section 21(3) -Objection as to territorial jurisdiction: at the earliest opportunity and where consequent failure of justice - Not in Appellate or Revisional Court.""
Sri D.R. Sundaresh, the learned counsel for the judgment debtor in both the appeals, submits that the doctrine of lis pendens is applicable to the facts and circumstances of this case. The auction purchaser is a transferee-pendente-lite representing the transferor-decree holder. The appellant is not a bonafide purchaser and he cannot claim the status of a bonafide purchaser under Section 19(2) of the Specific Relief Act. The appellant has no right to obstruct the execution petition. The decree in O.S. No. 11243/1998 is not executable. Without transferring the decree to the Court at Mysore, City Civil Court, Mayohall, Bangalore, was not competent to sell the property situated at Mysore.
Learned counsel, Sri D.R. Sundaresh, relied on the following rulings:
"(i) In the case of Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, AIR 1967 SC 1440 : (1967) 2 SCR 18 ; wherein Head Note ''C'' reads as under:
"(C) T.P. Act (1882) S. 52 -Section does not strictly apply to involuntary alienations like Court sales, but principle of lis pendens applies to such alienations."
(ii) In the case of Chacko Pyli Vs. Iype Varghese ; wherein Head Note A'' reads thus:
"T.P. Act (1882), S. 52 - Transferee pendente lite - Transferee is representative of transferor -Civil P.C. (1908), O. 22 R 10)."
(iii) In the case of HAR NARAIN (D) BY LRS. v. MAM CHAND (D) BY LRS. AND ORS. in CIVIL APPEAL NOS. 995-996 OF 2003; wherein paragraph Nos. 14 and 15 read as under:
"14. xxxx This Court came to the conclusion that in view of Section 19(b) of the Act, 1963 and definition contained under Section 3 of the Act, 1882, it could not be held that the subsequent purchasers were bona fide purchasers in good faith for value without notice of the original contract and they were required to make inquiry as to the nature of the possession or title or further interest, if any, of the other party over the suit property at the time when they entered into sale transaction, notwithstanding, that they were already aware that the other party was in possession of the suit property as the tenant. Thus, what is material is the inquiry at the time when subsequent sale transaction was entered into.
The instant case is squarely covered by the aforesaid judgment, so far as this issue is concerned. The subsequent purchaser has to be aware before he purchases the suit property. Thus, we are of the considered opinion that respondent Nos. 2 to 6 could not be held to be bona fide purchasers for value paid in good faith without notice of the original contract and the sale in their favour was subject to the doctrine of lis pendens. Legal maxim, pendente lite, nihil innovetur; provides that as to the rights of the parties to the litigation, the conveyance is treated as if it never had any existence; and it does not vary them."
(iv) In the case of Dilip Kumar Vs. Vijay Bahadur Singh and Others, AIR 2009 MP 165 : (2009) ILR (MP) 1408 : (2009) 2 JLJ 276 : (2009) 4 MPHT 326 : (2010) 1 MPJR 211 : (2009) 3 MPJR 118 : (2009) 2 MPLJ 587 ; wherein Head Note A'' reads as under:--
"Civil P.C. (5 of 1908) O. 21 Rr. 102, 98, 100 - Transfer of Property Act (4 of 1882) S. 52 -Resistance or obstruction in execution of decree for possession of immovable property - Rules not applicable to transferee pendente lite - Transferee from a judgment debtor is presumed to be aware of the proceedings before a Court of law - He should be careful before he purchased the property which is the subject matter of litigation - It recognizes the doctrine of lis pendens recognised by Section 52 of T.P. Act."
(v) In the case of Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, (1998) 3 AD 249 : AIR 1998 SC 1754 : (1998) 3 JT 1 : (1998) 119 PLR 519 : (1998) 2 SCALE 550 : (1998) 3 SCC 723 : (1998) 2 SCR 587 : (1998) 1 UJ 521 : (1998) AIRSCW 1544 : (1998) 3 Supreme 555 ; wherein paragraph No. 10 reads as under:
"10. It is true that R. 99 of O.21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under Rule 97 or Rule 99" shall be determined by the executing Court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution Court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the statutory principle adumbrated in Section 52 of the Transfer of Property Act.
When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution Court to adjudicate upon it. But while making adjudication, the Court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint.
The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a question merely because the resistor raised it. The questions which executing Court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendent elite, it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21, Rule 97(2) of the Code, execution Court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section."
(vi) In the case of A.V RAJU v. H. PHOOLCHAND (DECEASED BY L.Rs) reported in AIR 2011 MADRAS 83 ; wherein Head Note reads as under:--
"Civil Procedure Code (5 of 1908) - O.21, R. 98- Transfer of Property Act (4 of 1882), S. 52 -Execution petition for delivery of possession -Obstruction to execution by lis pendens purchaser purchasing property from judgment-debtor - Lis pendens purchaser claiming right under judgment-debtor cannot call upon Court to decide his obstruction, like suit - Purchaser pendente lite cannot question legality of decree and propriety of Court in passing such a decree. (paras 10,19)
(vii) In the case of Chinnamal and others Vs. P. Arumugham and another, AIR 1990 SC 1828 : (1990) 1 JT 51 : (1990) 1 SCALE 43 : (1990) 1 SCC 513 : (1990) 1 SCR 78 ; wherein Head Note reads as under:--
"Civil P.C. (1908), S. 144 and O.21 R. 29 -Restitution - Auction sale of property in execution of money decree - Purchaser aware of pending appeal against decree when he purchased property - Sale confirmed by Court - Decree set aside in appeal -Judgment-debtor is entitled to restitution of property."
(viii) In the case of Usha Sinha Vs. Dina Ram and Others, AIR 2008 SC 1997 : (2008) 3 CLT 226 : (2008) 4 SCALE 687 : (2008) 7 SCC 144 : (2008) AIRSCW 2883 ; wherein Head Note reads as under:--
"Civil P.C. (5 of 1908), O.21, Rr. 102, 98, 29 -Obstruction to execution of decree - Purchaser pendente lite - Cannot raise - Execution cannot also be stayed under R.29.""
The point that arises for my consideration in these appeals is,
"Whether there is any ground made-out to interfere with the impugned order passed by the Court below?"
My answer to the above point is in the negative for the following reasons.
M/s. Rhone-Poulenc Agro Chemicals (India) Limited-plaintiff instituted a suit against M/s. Mysore Crop Care (P) Limited-defendant for recovery of money. According to the pleadings, there was a transaction between the plaintiff and the defendant Company in respect of supply of agricultural pesticides. It is alleged that the plaintiff delivered the same to the defendant and the defendant failed to make payments for the outstanding amount, in spite of letters written by the plaintiff on 5.1.1998, 17.2.1998 and 18.2.1998. The plaintiff stated that the defendant was appointed as stockists to deal with the agro-chemical products manufactured by the plaintiff company. The defendant was duly authorised to operate and promote sales in and around Mysore and Mandya Districts by way of a written contract. As per the terms and conditions of the agreement, the same being a commercial transaction between the plaintiff and the defendant, the outstanding amount attracts interest at 24% per annum. The cause of action arose on different dates from 1.4.1996 to 28.5.1998. The legal notice dated 18.5.1998 was also issued. Therefore, the plaintiff claimed an amount of Rs. 3,63,971-24 along with future interest.
On 8.7.1999, by an ex-parte judgment and decree, the suit of the plaintiff was decreed and the defendant was directed to pay a sum of Rs. 3,63,971-24 with future interest at 24% per annum from the date of suit till realisation. Feeling aggrieved by the same, the defendant preferred Misc. Petition No. 15228/2001 and the said petition was allowed vide order dated 12.3.2003 and the ex-parte judgment and decree dated 8.7.1999 passed in O.S. No. 11243/1998 was set aside.
The order sheet of the trial Court maintained in O.S. No. 11243/1998 reveals that after restoration of the suit, on 7.11.2003, advocate for the defendant filed an application under Order V Rule 20 of the Code of Civil Procedure for issuance of suit summons by way of Paper Publication. The counsel has furnished the paper publication for having published the notice on 20.12.2003. The suit was posted on 20.1.2004 for appearance of the plaintiff before the Court below, but the plaintiff did not appear before the Court. Subsequently, on 24.8.2005, the suit of the plaintiff came to be dismissed for default.
After the ex-parte decree was passed by the Court of City Civil Judge, Mayohall, Bangalore, in O.S. No. 11243/1999, the plaintiff i.e. M/s. Rhone-Poulenc Agro Chemicals (India) Limited filed Ex. Petition No. 15176/1999 before the Court below. In that proceedings, the immovable property belonging to the proprietor of the defendant company-Sri Puttalingaiah was sold through Court in public auction on 9.6.2000. The said immovable property was purchased by Sri B.S. Raghavendra Rao. The sale was confirmed on 24.6.2000 by the City Civil Court, Mayohall, Bangalore. Subsequently, the immovable property was sold in favour of Sri K.H. Raghavendra. Sri K.H. Raghavendra, in turn, sold the property to the appellant herein, i.e. Rajendra V. Deshpande.
Section 38 of the Code of Civil Procedure deals with Court by which decree may be executed. It provides that the decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. No Court should execute the decree where the subject matter of the suit or execution is constituted entirely outside its territorial jurisdiction. It is a condition precedent to a Court to execute the decree. In the instant case, the City Civil Court, Mayohall, Bangalore, did not transfer the decree to the Court at Mysore. On the other hand, the City Civil Court, Mayohall, Bangalore, has executed the decree. Therefore, there was lack of territorial jurisdiction to the City Civil Court, Mayohall, Bangalore, to execute the decree. The decree is a personal decree. It is a money decree. It is not even a mortgage decree. Such being the case, City Civil Court, Mayohall, Bangalore, did not have jurisdiction to sell the property situated outside its territorial jurisdiction, but it has sold the property situated at Mysore.
One of the contentions raised by the learned counsel for the appellant is that the appellant is a third party to the proceedings and that he is a bonafide purchaser. No doubt, the sale made by the Court was confirmed on 24.6.2000. As stated earlier, the plaintiff instituted a suit for recovery of outstanding money towards supply of pesticides. The defendant was placed ex-parte and ex-parte judgment and decree was passed in the suit. The decree was a personal decree and not a mortgage decree. The City Civil Court, Mayohall, Bangalore, without jurisdiction, has executed the decree and sold the property situated at Mysore and issued a sale certificate. Subsequently, the defendant filed a miscellaneous petition seeking to set-aside the ex-parte judgment and decree. The miscellaneous petition was allowed on 12.3.2003 and the suit was restored. Subsequently, the suit came to be dismissed for default on 24.8.2005. Therefore, there was no decree existing. The appellant herein derives his title in view of the sale made by the City Civil Court, Mayohall, Bangalore, in the execution proceedings instituted pursuant to a money decree.
In the instant case, the executing Court, i.e. City Civil Court, Mayohall, Bangalore, executed the decree and sold the property situated outside its territorial jurisdiction. The appellant-obstructer purchased the property on 30.12.2005, after the miscellaneous petition was allowed and the original suit was dismissed. No doubt, the purchaser of the property through Court may not strictly require to investigate into the title of the property sold, but he must be little cautious while purchasing the property which was the subject matter of litigation. As stated earlier, there is no decree in force. The decree has been set aside. Subsequently, the suit is dismissed. The sale emanated from the decree. The scale of balance has to be balanced between the parties. In case of personal decree, the Court lacks jurisdiction to execute the sale outside its territorial jurisdiction. In the instant case, in order to satisfy the money decree for Rs. 4,71,035/-, without transferring the decree to the Court at Mysore, the Court having no jurisdiction conducted auction sale. The sale made by the City Civil Court, Mayohall, Bangalore, of the property situated outside its territorial jurisdiction cannot be held to be valid.
In this case, the obstructer claims to be a bonafide purchaser. When judicial sale has to be set aside, we have to examine whether the judgment debtor has suffered any substantial injury. That no man should be allowed to enrich himself unjustly at the expense of another. In this case, as stated earlier, the suit was instituted for recovery of money. The suit was decreed. It is a money decree. The City Civil Court, Mayohall, Bangalore, executed the sale of the property situated at Mysore. The purchaser at an auction sale acquires the property subject to all defects of title. One of the contentions raised by the obstructer is that no notice was issued to him. He is a subsequent purchaser. Therefore, his contention that no notice was issued to him is not tenable.
The doctrine of restitution is that on the reversal of a judgment, the law raises an obligation on the party to the record, who received the benefit of the erroneous judgment, to make restitution to the other party for what he has lost. It is the duty of the Court to enforce that obligation unless it is shown that restitution is clearly contrary to the interest of justice. In the instant case, ex-parte judgment and decree was passed. The said judgment and decree was set aside. Therefore, the judgment debtor filed an application under Section 144 of the Code of Civil Procedure for restitution of the property in question. In order to entitle a person to apply under Section 144, two conditions must be satisfied.
"i) He must be a party to the decree or order varied or reversed; and
ii) He must have become entitled to any benefit by way of restitution or otherwise under the reversing decree or order."
In the instant case, the judgment debtor who suffered an ex-parte judgment and decree moved a Miscellaneous Petition and in the Miscellaneous Petition, the ex-parte judgment and decree was set aside and the suit was restored to original position. Subsequently, the suit filed by the decree holder was dismissed for default. Therefore, the judgment debtor is entitled to benefit by way of restitution.
The trial Court after carefully considering the facts and circumstances of the case and also since the decree was not in existence, came to the conclusion that the application filed under Order XXI Rules 97, 98, 101 read with Section 151 of the Code of Civil Procedure filed by the obstructer is liable to be dismissed and the application filed by the judgment debtor under Section 144 read with Section 151 of the Code of Civil Procedure is liable to be allowed. In my view, the trial Court has considered all the aspects of the matter and the order passed by the trial Court is sound and proper and does not call for interference.
In view of the above discussion, I pass the following:
ORDER
Both the appeals are dismissed. The parties to bear their own costs. Interim order granted earlier is vacated. Liberty is reserved to the auction purchaser to recover the money by instituting appropriate proceedings.