Executing Court Must Allow Plea For Police Help To Deliver Possession After Third Party Purchased Suit Property Pendente Lite: Karnataka HC
The Karnataka High Court observed that an executing court must allow the application for police help in handing over the possession of a suit property when a stranger/third party has purchased such property during the pendency of proceedings.
A writ petition was filed under Article 227 of the Constitution by the decree holders seeking to quash the impugned order passed by an Executing Court under Order XXI Rule 97 read with Section 151 of the Code of Civil Procedure, 1908, dismissing the application filed for police help to the Court Amin to deliver the possession of the decreed property.
The Bench of Justice R Nataraj observed, “Having regard to the involvement of strangers in the suit property, who purportedly have purchased the suit property from the decree holders during the pendency of the proceedings, it was very likely that handing over possession of the suit property by the Court Amin to the decree holders would be obstructed and therefore, in the fitness of things, the executing Court must have allowed the application filed by the decree holders for police help.”
Advocate Cyril Prasad Pais appeared for the Petitioners and Advocate Anish Acharya for the Respondents.
The decree holders filed a suit for the specific performance of an agreement of sale executed by the Respondent No. 1/Defendant. The Suit was decreed and judgment was put in the execution. After that the third respondent filed an application to be impleaded in the execution petition on the ground that he had an agreement of sale in respect of the suit property, which was executed by the Respondent No. 1, the application was allowed in a separate writ petition.
Subsequently, the Executing Court in terms of the impugned order rejected the application filed by the decree holders for police help and allowed the application filed by the Respondent No. 3 under Order XXI Rule 97 read with Section 151 of CPC, unmindful of the proscription under Order XXI Rule 102 of CPC, that the provisions of Order XXI Rules 98 and 100 of CPC are not available to apply to a person who was purchased the property pendente lite.
Relying on Order XXI Rule 102 of the CPC and the judgment of the Apex Court in Silver Line Forum Pvt. Ltd. v. Raji Trust and Ors. (1998 SC), the Court said that the Respondent No. 3 was not entitled to obstruct the execution of the decree in any manner whatsoever. The Court further said that he could not claim that he was a bonafide purchaser, having regard to the fact that the sale deed in his favour was subsequent to filing of the suit and in view Section 52 of the Transfer of Property Act, 1882, he could not claim to be a bonafide purchaser entitled to the benefit akin to a bonafide purchaser without notice to the previous transaction under Section 19(1)(b) of the Specific Relief Act, 1963.
“In so far as the application filed by the decree holders is concerned, the fact that the sale deed was executed in favour of the decree holders, entitled the decree holders to recover possession through the process of executing Court.”, the Court observed.
Accordingly, the Court allowed the petition and directed the Executing Court to issue necessary directions to the jurisdictional police to grant protection to the Court Amin to deliver the possession of the suit schedule property to the decree holders.
Cause Title: Joy Jeevan Prakash Veigas and Ors. v. Nagamma and Ors. (Neutral Citation: 2024: KHC: 11272)
Appearances:
Petitioners: Advocate Cyril Prasad Pais
Respondents: Advocate Anish Acharya
