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Andhra Pradesh High Court
Judges : V.NEELADRI RAO
Vegulla Satyanarayana Murthy - Appellant
Versus
Alluri Annapurnamma - Respondent
Decided On : 11-27-91
EXECUTION OF DECREE - POSSESSION OF IMMOVABLE PROPERTY - TRANSFER OF PROPERTY PRIOR TO SUIT - BINDING EFFECT OF DECREE - SCOPE OF ENQUIRY UNDER ORDER 21, RULE 101 CPC - RIGHT OF DECREE-HOLDER TO OBTAIN POSSESSION - MAINTENANCE CLAIM - NOTICE TO PURCHASER - SECTION 39 OF THE TRANSFER OF PROPERTY ACT.
Fact of the Case:
R-1 obtained a decree for maintenance with charge and separate residence against her husband, R-2, in O. S. No. 582 of 1973. The property in question was allotted to R-1 for residence. During the pendency of the suit, R-2 sold portions of the property to the appellants under two separate registered sale deeds. R-1 filed E. P. No. 235 of 1979 under Order 21, Rule 35 CPC for possession of the property. Possession was delivered to R-1. The appellants filed E. A. Nos. 977 and 976 of 1979 respectively for possession of the same property. The petitions were allowed by the Executing Court. The orders were set aside by the 1st Appellate Court. The appellants challenged the judgment in second appeals.
Finding of the Court:
1. A person who purchased the property from the judgment-debtor prior to the filing of the suit is not bound by the decree obtained against that judgment-debtor. 2. The Executing Court cannot order dispossession of such purchaser when he resisted the execution of the decree. 3. The determination of questions relating to right, title, or interest in the property arising between the parties to a proceeding on an application under Order 21, Rule 97 or Rule 99 CPC is only to find out whether the obstructor or one who resists the claim for possession by the decree-holder or auction-purchaser or who was dispossessed in execution of the decree by them, was in possession in his own right or through the judgment-debtor on the date of the suit or during the pendency of the suit. 4. The claim of R-1 on the basis of Section 39 of the Transfer of Property Act is not a matter to be adjudicated in an enquiry under Order 21, Rule 97 or Order 21, Rule 99 CPC and it is a matter for consideration in a suit if filed.
Issues: 1. Whether a person who purchased the property from the judgment-debtor prior to the filing of the suit is bound by the decree obtained against that judgment-debtor? 2. Whether the Executing Court can order dispossession of such purchaser when he resisted the execution of the decree? 3. Whether the determination of questions relating to right, title, or interest in the property arising between the parties to a proceeding on an application under Order 21, Rule 97 or Rule 99 CPC is only to find out whether the obstructor or one who resists the claim for possession by the decree-holder or auction-purchaser or who was dispossessed in execution of the decree by them, was in possession in his own right or through the judgment-debtor on the date of the suit or during the pendency of the suit? 4. Whether the claim of R-1 on the basis of Section 39 of the Transfer of Property Act is a matter to be adjudicated in an enquiry under Order 21, Rule 97 or Order 21, Rule 99 CPC?
Ratio Decidendi: 1. A decree-holder can obtain possession in execution of the decree for possession from the judgment-debtor or from the person or persons who are bound by the decree for possession. 2. Transferec pendents lite is bound by the decree. 3. A person who claims through a judgment-debtor after the institution of the suit or one who is a subordinate holder, i.e., one who holds right or interest in the immovable property subject to the title of the judgment-debtor, is bound by the decree for possession. 4. If the judgment-debtor transferred the immovable property by executing the registered document even before the filing of the suit, he was not having title by the date of the suit. 5. In such a case, it cannot be stated that the decree obtained by the decree-holder for possession of immovable property against a person who had no title by the date of filing of the suit, binds the persons who had title by the date of institution of such a suit. 6. Order 21, Rule 97 CPC has to be read along with Order 21, Rule 35 and Section 74 CPC. 7. Order 21, Rule 97 CPC can be invoked only in case of resistance by the judgment-debtor or a person who resisted or obstructed on behalf of the judgment-debtor or by a person who is bound by the decree. 8. The determination of questions relating to right, title, or interest in the property arising between the parties to a proceeding on an application under Order 21, Rule 97 or Rule 99 CPC is only to find out whether the 3rd party, i.e., the obstructor or one who resists the claim for possession by the decree-holder or auction-purchaser or who was dispossessed in execution of the decree by them, was in possession in his own right or through the judgment-debtor on the date of the suit or during the pendency of the suit. 9. The claim of R-1 on the basis of Section 39 of the Transfer of Property Act is not a matter to be adjudicated in an enquiry under Order 21, Rule 97 or Order 21, Rule 99 CPC and it is a matter for consideration in a suit if filed.
Final Decision: The appeals were allowed. The impugned orders were set aside, and E. A. Nos. 977 and 976 of 1979 praying for restoration were allowed.
( 1 ) R-1 herein obtained decree for maintenance with charge and separate residence against her husband i. e. , R-2 herein, in O. S. No. 582 of 1973 1st additional D. M. C. , Tanuku. As per the said decree, the property, which is the subject-matter of these two appeals, was allotted to R-1 towards residence. But, even on 29-10-72, these two appellants purchased the protions of the said property under two separate registered sale deeds from R-2. E. P. No. 235 of 1979 was filed under O. 21, R. 35 CPC for possession of the property given to R-l for residence. The possession of the same was delivered to R-1 by breaking open the locks with the permission of the Court. Then, these appellants filed e. A. Nos. 977 and 976 of 1979 respectively for possession of the same. Those petitions were allowed by the Executing Court. The orders therein were set aside by the 1st Appellate Court. The judgment of the 1st Appellate Court and the decrees therein, were challenged in these second appeals.
( 2 ) R-L pleaded that she had given notice about the claim for maintenance to p. W. I, the father of the appellants informing him that if he purchases the property from her husband, he had to do so at his risk P. W. 1 received it as per ex. B-1 acknowledgment dt. 16-10-1972. Hence, it is a case where the appellants purchased the property having notice of the claim of R-1 for maintenance as against her husband and as such the purchases by the appellants are subject to the right of R-1 under Section 39 of the T. P. Act.
( 3 ) THE contentions for the appellants are two-fold: (1) The signature on Ex. B-1 is not that of P. W. 1. Even if the said signature can be held as that of P. W. 1, still the notice to their further P. W. 1 cannot be attributed to the appellants, who are the purchasers from R-2. R-2 sold the premises to the appellants in discharge of the mortgage debts. The claim for maintenance does not have precedence over the secured debt. (2) As the appellants herein were no t parties to O. S. No. 582 of 1973, they are not bound by the decree therein and as such, R-1 cannot take possession of the property from these appellants in execution of the decree in o. S. No. 582 of 1973. These are the two points for consideration in these appeals.
( 4 ) 1 will take up the latter point first. Before, adverting to the same, it will be convenient to refer to the relevant provisions under C. P. C. , whcih read as under:- o. XXI,r35:"decree for immovable property: 35. (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2)xxx xxx xxx (3) xxx xxx xxx. "section 50:"legal representative. 50. (1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased. (2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit. "section 74:"resistance to execution: 74. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree-holder or purchaser, order
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