Amit B. Borkar, J
1. This case is illustrative of the difficulties, which a decree-holder has to encounter in recovering possession of immovable property in execution, after
she has obtained decree of Competent Court. It is one of those cases, by no means rare, in which the execution proceedings have dragged down to
inordinate lanes and led to consequent waste of public time and expense to the parties.
2. The crux of the matter involved between the parties is, as to whether the decree passed by the Consumer Court was inexecutable due to non-
payment by decree-holder amount specified in the decree, within 30 days from the date of decree.
3. A brief recapitulation of facts would bring the matter in proper perspective for appreciation of issues involved.
On 12.1.1985, respondent no.1 entered into an agreement with the appellant-Developer for purchase of Block No.111 on the first floor of Satyam
Apartments, situated at Wardha Road, Dhantoli, Nagpur, for a total consideration of Rs.95,000/-. Respondent no.1-decree-holder paid an amount of
Rs.85,000/- to the Developer-appellant, but, in-spite of the said payment, neither Sale Deed was executed in respect of property in dispute nor the
possession was handed over and, therefore, the decree-holder filed a Complaint bearing No.UTP-886 of 1993 before the Consumer Court in Nagpur,
seeking relief of possession and execution of the Sale Deed. The Consumer Forum at Nagpur, on 3.4.1995 allowed the complaint of the decree-holder
and directed the decree-holder to pay outstanding amount of Rs.10,000/- and M.S.E.B. charges. It was also directed that within one month of
payment of Rs.10,000/-and charges of M.S.E.B., the appellant-Developer was directed to handover possession of shop premises complete in all
respect. The Developer-appellant challenged the order passed by the Consumer Court, Nagpur, before the Consumer State Commission in Appeal
No.889 of 1995 and the Consumer State Commission by its order dated 30.5.1996 was pleased to dismiss the appeal of the Developer. The Consumer
Forum on 11.4.1996 issued a Certificate about non-satisfaction of its order and accordingly Special Darkhast No.190 of 1996 came to be registered
before the Civil Judge, Senior Division, Nagpur. The appellant-Developer on 28.10.1996 filed an objection at Exhibit-13 under Section 47 of the Code
of Civil Procedure, for dismissal of execution proceedings on the ground of failure to deposit amount as per the order of the Consumer Court. The
Executing Court, by its order dated 7.7.1997, allowed the application below Exhibit-13 filed by the appellant-Developer and the Executing Court was
pleased to hold that the decree-holder is not entitled to execute the decree and, therefore, dismiss the execution proceedings.
4. The decree-holder, being aggrieved by the order of dismissal of execution proceedings, initially filed Civil Revision Application No.772 of 1997,
which was subsequently withdrawn, with liberty to file Writ Petition challenging the order of dismissal of execution proceedings. The decree-holder
thereafter filed Writ Petition No.6123 of 2004 challenging the order dated 7.7.1997, thereby dismissing the execution proceedings filed by the decree-
holder. After dismissal of execution proceedings, on 6.8.1997 the appellant-Developer sold the property in question i.e. Shop No.111 in favour of one
Trilokchand s/o Birdichand Bhandari, the purchaser was made party-respondent no.4 to the Writ Petition.
5. The learned Single Judge of this Court, by order dated 16.10.2009 allowed Writ Petition No.6123 of 2004 and directed respondent nos.1 and 2 to
deliver possession of the shop block within eight weeks from the date of order. It was also directed that respondent nos.1 and 2 shall pay
compensatory costs of Rs.50,000/-to the decree-holder within eight weeks from the date of the order. It was made clear in the said order by the
learned Single Judge that failure to deliver possession within the period prescribed by the learned Single Judge shall result in making payment of
damages @ Rs.One thousand per day, till the actual delivery of possession.
6. The Developer has filed Letters Patent Appeal No.539 of 2009 challenging the order of the learned Single Judge dated 16.10.2009 and Letters
Patent Appeal No.549 of 2009 is filed by Purchaser, who has purchased the shop block after passing decree in favour of respondent no.1-decree-
holder. On 26.11.2009, this Court was pleased to admit Letters Patent Appeal No.539 of 2009 and was pleased to grant ad-interim stay, in terms of
prayer clause (ii), subject to the conditions stated in the said order.
7. We have heard the learned counsels appearing for the appellants in both the appeals and the learned counsels appearing for the respondents in both
the appeals.
8. It is submitted by the learned counsel appearing for the Developer that since the application below Exhibit-13 filed in execution proceedings was
under Order XXI Rule 97 of the Code of Civil Procedure, Writ Petition against the order allowing the said application was not maintainable since the
petitioner had remedy of appeal under Order XXI Rule 103 of the Code of Civil Procedure. It was further submitted that since the decree-holder has
not paid balance amount of Rs.10,000/- and M.S.E.B. charges within a period of 30 days from the date of passing of order, the Executing Court was
justified in dismissing the execution proceedings. It was also submitted that the appellant-Developer had issued three notices dated 10.4.1995,
11.9.1995 and 17.2.1996 calling upon the decree-holder to pay amount, as per the decree of Consumer Court and, therefore also the learned Single
Judge was not justified in allowing the petition.
9. The learned counsel appearing for the Appellant in Letters Patent Appeal No.549 of 2009 i.e. for purchaser, submitted that the appellant in the said
appeal is a bonafide purchaser for value and should not be put to prejudice.
10. The learned counsel appearing for respondent no.1 in both appeals i.e. decree-holder submitted that the order passed by the Consumer Court is not
conditional, as construed by the Executing Court. The learned Single Judge has given cogent reasons for allowing the Writ Petition. The learned
counsel relied upon the judgment of the Apex Court in the case of Jai Naraian Ram Lundia Vs. Kedar Nath Khetan and others, reported in AIR 1956
Supreme Court 356 and it is submitted that if a decree imposes obligations on both sides, then the executing Court cannot dismiss the execution unless
and until the executing Court is satisfied that the decree-holder is not in a position to perform the condition imposed.
11. We have considered submissions of both sides and have carefully gone through the record of both appeals. After going through the record, it
reflects sad State of affairs, particularly when a lady who has entered into an agreement with Developer on 12.1.1985 and in-spite of paying more
than 90% of consideration, is not getting the property agreed to be sold after 35 years. The learned Single Judge has considered the submissions made
by both parties in detail and has given detailed reasons as to why he is recording the finding of dishonesty on the part of respondent nos.1 and 2 for not
abiding by its commitment and the orders of the Consumer Court. The learned Single Judge has in paragraph no.7 considered the alleged
communications of the Developer dated 10.4.1995, 11.9.1995 and 17.2.1996 and has recorded a finding that these communications are got up
documents. The learned Single Judge has rightly relied upon the judgment of the Hon'ble Supreme Court in the caseS tate of Maharashtra Vs. Rashid
B. Mulani, reported in 2006 (1) SCC 407 and has quoted paragraph no.17 of the said judgment. It is further required to be noted that had Developer
accepted the judgment of the Consumer Court in the year 1995 itself without filing an appeal against the said order, such communications could have
been believed but, since the Developer had filed appeal against the order of Consumer Court before the State Commission and the same was
dismissed in the year 1996, the learned Single Judge was right in disbelieving the communications sent by U.P.C.
12. There is no substance in the argument of appellant-Developer that the decree in question, which is passed by the Consumer Court was a
conditional decree and in view of failure on the part of the decree-holder to perform her part of contract i.e. payment within 30 days from the date of
its order, the decree could not have been executed. To appreciate the said submission, it is necessary to mention the operative order passed by the
Consumer Court, which reads as under:
“The opposite party is directed to hand over possession of the shop premises complete in all respect agreed to be sold to the complainant within one
month of the payment of Rs.10,000/- and the amount deposited by the oppositeparty with the M.S.E.B. for the complainant. The opposite party shall
inform the complainant about the amount within 15 days of this order in writing.
The opposite party shall pay interest to the complainant @ 18.5 p.a. on the amount of Rs.85,000/-from 31.01.1988 till possession of the shop is given to
the complainant.
The opposite party shall pay Rs.200/- as costs of this complaint to the complainant and bear its own costsâ€.
13. After carefully considering the language of the operative portion of order passed by the Consumer Court, it is clear that it is the Developer was
required to inform the decree-holder about the charges of M.S.E.B., within 15 days from the date of the order. In view of finding by learned Single
Judge that there is no communication made by Developer informing Decree-holder to pay M.S.E.B.charges, the obligation cast on Decree-holder will
not come into effect. In so far as the period of payment by the decree-holder is concerned, the same was not specified in the decree of the Consumer
Court. The decree of the Consumer Court was to the effect that it is upon the payment of Rs.10,000/- and charges of M.S.E.B, the Developer was to
deliver possession of the shop premises within one month and, therefore, the period of one month to hand over possession will start after the amount is
paid by the decree-holder and, therefore, the construction of the decree made by the learned Executing Court was completely erroneous.
14. The learned counsel appearing for the decree-holder was right in relying upon the judgment of the Hon'ble Supreme Court in the case of Jai
Naraian Ram Lundiya Vs. Keder Nath Khetan (supra). The Hon'ble Supreme Court in paragraph no.18 has held as under:
“When a decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by the other
execution will not be ordered unless the party seeking execution not only offers to perform his side but, when objection is raised, satisfies the executing
Court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree: a thing that an executing Court
cannot do.â€
15. In the facts and circumstances of the present case, it is not in dispute that during pendency of the execution proceedings, the decree-holder has
deposited the required amount and, therefore, it was boundant duty on the part of the Executing Court to deliver the possession and direct the
Developer to execute the Sale Deed. But, having failed to do so, the learned Single Judge was justified in setting aside the said order.
16. In so far as submission about maintainability is concerned, it clear from order of executing Court that the Developer had filed application below
Exh.13 only under Section 47 of the Code of Civil Procedure. Even otherwise also since Developer was party to the proceedings, he could have filed
application only under Section 47 of the Code of Civil Procedure and not under Order XXI Rule 97 of Code of Civil Procedure. Therefore, Appeal
under Order XXI, Rule 103 of Code of Civil Procedure was not maintainable against order of dismissal of execution proceeding.
17. Taking into consideration the facts, circumstances and reasons stated above, we are of the opinion that the learned Single Judge was justified in
allowing the Writ Petition and directing respondent nos.1 and 2 to deliver possession and execute the Sale deed.
18. In so far as the Letters Patent Appeal No.549 of 2009 is concerned, the appellant is the purchaser, who has purchased a shop block admittedly
after passing of the decree. The plea of the appellant in the said appeal is that the appellant is bonafide purchaser for value without notice. It is settled
principle in law that onus of proof of good faith is upon the subsequent purchaser, who takes a plea that he is an innocent or bonafide purchaser for
value without notice of the original contract. There is no ground raised or any statement in the appeal memo by the appellant-purchaser that he had
made any enquiry or taken search in respect of title of property in dispute before producing the property in dispute. It is also not stated in the appeal
memo that the purchaser had published public notice before purchase of property in dispute. To consider the submission about bonafide purchaser for
value without notice, it is necessary to draw analogy from Rule 102 of Order XXI of the Code of Civil Procedure, which reads as under:
“Rule 102. Rules not applicable to transferee pendente lite - Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a
decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit
in which the decree was passed or to the dispossession of any such personâ€.
19. The Hon'ble Supreme Court in the case of Usha Sinha Vs. Dinaram and others reported in (2008) 7 SCC 144, had occasioned to consider the
dispute of transferee from the judgment-debtor and in paragraph no. 17, the Hon'ble Supreme Court has held as under:
“Rule 102 clarifies that Rules 98 and 100 of Order 21 of the Code do not apply to transferee pendente lite. That Rule is relevant and material and
may be quoted in extenso:
“102. Rules not applicable to transferee pendente lite - Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree
for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in
which the decree was passed or to the dispossession of any such personâ€.
Bare reading of the rule makes it clear that it is based on justice, equity and good conscience. A transferee from a judgment debtor is presumed to be
aware of the proceedings before a Court of law. He should be careful before he purchases the property which is the subject-matter of litigation. It
recognizes the doctrine of lis pendens recognized by Section 52 of the Transfer of Property Act, 1882. Rule 102 of Order XXI of the Code thus takes
into account the ground reality and refuses to extend helping hand to purchasers of property in respect of which litigation is pending. If unfair,
inequitable or undeserved protection is afforded to a transferee pendente lite, a decree-holder will never be able to realize the fruits of his decree.
Every time the decree-holder seeks a direction from a Court to execute the decree, the judgment-debtor or his transferee will transfer the property
and the new transferee will offer resistance or cause obstruction. To avoid such a situation, the rule has been enactedâ€.
20. The Apex Court in the said judgment of Usha Sinha (supra) has referred to the judgment of the Hon'ble Supreme Court in the case ofS ilver Line
Forum Vs. Rajiv Trust reported in 1998 (3) SCC 723, wherein it has been held that the person purchasing property from the judgment-debtor during
pendency of the suit has no independent right to property to resist, obstruct or object the execution of a decree.
21. Taking into consideration the fact that the purchaser has purchased the shop block in question after passing of the decree and, therefore, such
person will not get any independent right, much less protection of bonafide purchaser for value without notice. Therefore, such purchaser cannot be
said to be aggrieved by judgment of the learned Single Judge.
22. Considering the aforesaid judgments and the finding of dishonesty recorded by the learned Single Judge, it will not be equitable to interfere under
Clause 15 of the Letters Patent. Therefore, both the Letters Patent Appeals are dismissed.
23. Taking into consideration the fact that respondent no.1-decree-holder is more than 74 years old and the agreement in question is dated 12.1.1985,
the appellants are directed to hand over the possession of block no.111 on the first floor of Satyam Apartment at Wardha road, Dhantoli, Nagpur
within four weeks from today. For the remaining part of the order passed by the learned Single Judge, the decree holder shall be entitled to execute
the order of the learned Single Judge according to the law.
24. Put up the matter for compliance on 13.3.2020.
