SBCWP No.8899/2008 Raj Kumar Vs. Balwan & Ors. 1 SBCWP No.8899/2008 Raj Kumar Vs. Balwan & Ors DATE OF ORDER : - 1.4.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.Rakesh Matoria for the petitioner. Mr. Moti Singh, for the respondents. <><><> Heard learned counsel for the parties. The petitioner is aggrieved against the order dated 4th Oct., 2008 by which, in the petitioner-decree-holder's application filed in his own execution petition, the trial court framed the issues that whether the decree obtained by Raj Kumar is collusive therefore, theory of lis pendence is not applicable on the purchased property by Smt. Reshma and whether Smt. Reshma is bound by decree passed in the case. The petitioner has challenged the said order of the executing court after allowing the application of the petitioner filed under Section 52 of the Transfer of Property Act. The facts of the case reveal that to enforce an agreement for sale dated 27th Sept., 1989 a suit was filed by one Raj Kumar which was decreed against Balwant Singh SBCWP No.8899/2008 Raj Kumar Vs. Balwan & Ors. 2 and Shanker Lal defendants. The said suit was decreed by the trial court on 17th April, 1993. Then plaintiff-decree holder Raj Kumar submitted execution petition, which appears to be in the year 1993. In the execution petition both the judgment-debtors Balwant Singh and Shanker Lal were parties. During the pendency of the execution petition, the judgment-debtor Balwant Singh died in the year 1999 then application was submitted for taking on record the legal representative of Balwant Singh. Balwant Singh's legal representative-his brother Balwan and his sister Smt. Santokhi were taken on record in the execution case. Balwant Singh's legal representative Balwan put in appearance in the court personally with his advocate on 11th Nov., 2006. Even after knowledge of decree and during pendency of execution, on 15.2.2006 the suit property was sold by Balwan by registered sale deed in favour of respondent no.3 Smt. Reshma. Instead of executing the decree, the decree holder himself submitted an application under Section 52 of the Transfer of Property Act alleging that in view of the principle of lispendence the sale deed in favour of Smt. Reshma cannot be recognized. In reply to SBCWP No.8899/2008 Raj Kumar Vs. Balwan & Ors. 3 the application submitted by the decree holder detail facts have been given out by the respondent no.3- purchaser of the property who purchased the property during the pendency of the execution since 1999 in a case where decree was granted in the year 1993. According to learned counsel for the respondent that in fact, Balwant had no right, title or interest in the property in dispute for which decree was obtained by Raj Kumar. It is also submitted that the decree was obtained conclusively with the help of the defendants which is fully proved from the facts as the suit was decreed with the consent of the defendants given in the written statement. It is also submitted that the suit property was never mutated in the name of Balwant and it is submitted that since the decree itself was collusive, therefore, it was not binding upon anybody and, therefore, the sale is valid and legal. On all these pleas, the executing court as stated above passed the order on 4.10.2008 as mentioned above and which is under challenge. Learned counsel for the petitioner-decree-holder vehemently submitted that the trial court has committed SBCWP No.8899/2008 Raj Kumar Vs. Balwan & Ors. 4 serious error of law by fixing the case for evidence of the parties and putting burden upon the decree holder to lead evidence on issue whether the purchaser Smt. Reshma is bound by decree or not. Learned counsel for the respondents submitted that since the decree holder himself submitted application and in reply to that the purchaser of the property submitted reply then the court was required to frame issue and decide the issues involved which have been raised by the petitioner- decree-holder himself and the contention of the respondents could not have been rejected summarily by the executing court. I considered the submissions of learned counsel for the parties and perused the facts of the case. The first fact is that the suit which was decreed was suit for specific performance of contract wherein a decree for enforcement of agreement alone could have been passed on proving the case by the plaintiff and in the main suit itself even co- sharer and rival claim of title for the property involved in the suit could not have been entertained by the trial court. The court even could not have inquired into the title of the SBCWP No.8899/2008 Raj Kumar Vs. Balwan & Ors. 5 vendor from whom sale of the property is demanded by the prospective purchaser-plaintiff. The scope of the execution cannot be beyond that which is the scope in the suit. Before the executing court the facts were not in dispute which are that the decree was passed against Balwant by the trial court and execution was lodged in the life time of Balwant himself and he died during execution proceedings and his legal representatives who are judgment-debtor's – brother and sister were taken on record. The legal representatives of the judgment-debtor put in appearance in the executing court in the year 2006 then admittedly, then sold the suit property on 15.2.2007, therefore, the sale was made certainly when the execution proceedings were going on. It is settled law that purchaser of the suit property during the pendency of the litigation cannot be treated to be a bonafide purchaser and it is admitted case that the property in question has been purchased by the respondent no.3 Smt. Reshma during the pendency of the execution petition. As stated above, since the title to the suit property and rival claim of Balwan and Santokhi for the SBCWP No.8899/2008 Raj Kumar Vs. Balwan & Ors. 6 party could not have been determined even in the main suit then it cannot be determined in the execution proceedings that too on application under Section 52 of the Transfer of Property Act. The application submitted by the decree-holder itself was misconceived because of the reason that the petitioner- decree holder could have proceeded with the execution without recognizing the sale in question and if any objection would have been from the judgment -debtor's legal representatives or transferee from the judgment-debtor's legal representatives, they could have moved proper petition under Order 22 Rule 97 CPC or may have availed other remedy of getting declaration of their title to the property in question, but purchaser of the property, who purchased the property after passing of the decree and during the execution of the decree then he is bound by the decree. The purchaser by purchase only cannot have better rights than the rights, which were available to the original judgment-debtor. Since other issues could not have been decided in the application under Section 52 of the Transfer of Property Act, therefore, the order of the execution court SBCWP No.8899/2008 Raj Kumar Vs. Balwan & Ors. 7 dated 4th Oct., 2008 which proceeded on entirely different grounds and has not looked into the admitted facts is set aside and the application filed by the decree holder under Section 52 of the Transfer of Property Act in the facts of the case is dismissed as there is no need to hold inquiry on the pleas taken by the judgment-debtor in respect to the application filed under Section 52 of the Transfer of Property Act filed by the decree holder. The trial court may be free to execute the decree in accordance with law. If the objectors may be purchasers from the legal representatives of the judgment-debtor if have filed any objection petition in the execution court, that may be decided by the execution court in accordance with law. The writ petition of the petitioner is allowed as mentioned above. (PRAKASH TATIA), J. c.p.goyal/-