IMPORTANT POINT
A subsequent purchaser cannot assert rights against a prior decree holder, as established by the doctrine of lis pendens under Section 52 of the Transfer of Property Act.

ORDER :

(PER: HON’BLE MR. JUSTICE H.P. SANDESH)

The relief sought in the writ petition is to issue a writ in the nature of certiorari to quash the impugned order dated 23.11.2023 passed by I Addl. Senior Civil Judge, Hubballi in E.P.no.196/2022 thereby dismissing the I.A.No.V filed under Order XXI rule 97 and 101 of Code of Civil Procedure, 1908 (for short, ‘CPC’) as per Annexure-F and such other writ or order or direction as this Court deems fit in the facts and circumstances of the case.

2. The factual matrix of the case of the petitioner is that he had filed a suit bearing O.S.No.91/2000 for the relief of specific performance and the said suit was decreed vide Annexure-A on 21.12.2000. The respondents herein had filed a Miscellaneous Appeal No.21554/2008 as against the orders passed in Miscellaneous Appeal and also for the limitation and this Court had allowed the appeal and remanded the matter on 25.07.2014 vide Annexure-B. The respondents herein had filed Execution Petition No.196/2002 which is produced as Annexure-C. The petitioner had filed obstructer application under Order XXI Rule 97 read with 101 of CPC and prayed the Trial Court to determine the rights of the applicant and the application in I.A.No.V is also produced as Annexure-D. The respondents had filed objections to I.A.No.V vide Annexure-E. The Trial Court had dismissed the said application filed by the petitioner in terms of Annexure-F vide order dated 23.11.2023 and hence, the petitioner has filed this Writ Petition having no alternative remedy.

3. The main ground urged in the petition that the Trial Court ought to have allowed the application and impugned order is not sustainable in the eye of law. The Trial Court had failed to take note of the intention of the legislation of Order XXI Rule 97 and 101 of CPC and erroneously dismissed the same in spite of this Court had allowed M.F.A.No.21554/2008 and the respondents are parties to the proceedings and the subject matter of the said suit and the present suit are one and the same. It is contended that once the rights of the parties have already been confirmed by this Court and further after the order of remand, they have not taken any steps for reopen the matter so the defence taken by the judgment debtor in respect of collusion will not hold good so rights of the plaintiff in O.S.No.91/2000 are to be decided in accordance with law and the Trial Court fails to adjudicate the claim of the petitioner and in spite of adjudicating the same, without recording the evidence, dismissed the application. Hence, it requires interference.

4. The counsel for the petitioner in support of his argument, relied upon the judgment of the Hon’ble Apex Court in the case of Jini Dhanrajgir and another Vs. Shibu Mathew and another etc., 2023 Supp. SAR (Civ) 556 and brought to the notice of this Court the discussion made in paragraph 22 wherein considering the scheme of Order XXI Rules 97 to 106, relied upon the judgment in Silverline Forum Pvt. Ltd. v. Rajiv Trust & another reported in 1998 SAR (Civ) 288 wherein it is held that it is clear that executing court can decide whether the resistor or obstructer is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course, the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary. The counsel also brought to the notice the paragraphs No.27, 28, 30 and also 31 wherein the discussion was made and held that the Executing Court shall proceed to deal with the application of the Appellants under Rule 97 of Order 21 of the CPC together with the objections raised by the Respondents on their own merits and without bei