Point of Law: where the resistance is caused or obstruction is offered by a transferee pendente lite, the scope of adjudication is confined to a question whether he was a transferee during the pendency of a suit in which the decree was passed. Once the finding is in the affirmative, the Executing Court must hold that he had no right to resist or obstruct and such person cannot seek protection from the Executing Court

JUDGMENT :

BELA M. TRIVEDI, J.

1. The present petition has been filed by the petitioner Savitriben Mayarambhai Thakkar under Article 226/227 of the Constitution of India, challenging the order dated 16.7.2014 passed by the Principal Civil Judge, Radhanpur (hereinafter referred to as the “Executing Court”) below Exh.14 in Execution Petition No. 4 of 2013, whereby the Executing Court has rejected the said Application filed by the petitioner for impleading her as the party opponent in the Execution Petition.

2. The present petition has a checkered history. The short facts as necessary to decide the present petition are that the respondent No. 1 Pandya Harshkantbhai Dahyabhai had filed a suit being Regular Civil Suit No. 68 of 1980 against the respondent No. 2 i.e. Patel Vasantlal Prabhulal and the father of the respondent No. 3 i.e. Ambaram Thakkar for redemption of the mortgage in respect of the suit property. A preliminary decree came to be passed in the said suit on 9.9.1983, against which an appeal being Civil Appeal No. 87 of 1983 was filed by the respondent No. 2 and the father of the respondent No. 3 (original defendants-judgment debtors). On 22.1.1993, the father of the respondent No. 3 i.e. Ambaram expired and the name of the respondent No. 3 was entered in the City Survey record. The present petitioner purchased the suit property from the respondent No. 3 Shantaben Ambarambhai by executing a registered Sale Deed on 14.12.1995. On 5.4.1997 the Civil Appeal No. 87/1983 came to be dismissed by the appellate Court. On 28.7.1997 the respondent No. 1 (original plaintiff-judgment creditor) filed a Civil Misc. Application being No. 7 of 1997 before the trial Court for drawing up of final decree, wherein the respondent No. 3 was also joined. According to the petitioner, at that time the respondent No. 3 came to know about the passing of the preliminary decree in the suit and the dismissal of the first appeal, and therefore, the petitioner and the respondent No. 3 preferred a Second Appeal being No. 123/1997 before High Court on 5.9.1997 with the permission of the Court. The said second appeal came to be withdrawn by the petitioner and the respondent No. 3, as per the order dated 14.7.2011 with liberty to approach the trial Court. Thereafter, in the proceedings of Misc. C.A. No. 7 of 1997, the respondent No. 3 brought it to the notice of the trial Court in her reply that she had already sold out the suit property to the present petitioner, and therefore, the petitioner be joined as the party opponent in the said application, however, the trial Court refused to join the petitioner as prayed by the respondent No. 3. The final decree thereafter was drawn by the trial Court in accordance with the preliminary decree. On 10.5.2013 the respondent No. 1 filed an Execution Petition being No. 4 of 2013 before the Executing Court and also filed an application for issuance of the possession warrant under Order XXI Rule 35. The petitioner, therefore, filed a separate Regular Civil Suit being No. 14 of 2014 for permanent injunction and declaration on 14.4.2014 and simultaneously also filed an application under Order I Rule 10(2) of CPC before the Executing Court for impleading her as the party opponent in the Execution petition. The petitioner also filed objections in the Execution petition under Order XXI Rule 97 read with Rule 98 to 103, however, the said objections were not taken on record by the executing Court in view of the earlier order passed by the Court below Exh.14 rejecting the application of the petitioner under Order I Rule 10(2).

3. The said Application Exh.14 came to be rejected by the Executing Court vide the order dated 16.7.2014 which is under challenge before this Court by way of the present petition. Thereafter the petitioner also filed objections in the Execution petition under Order XXI Rule 97 read with Rules 98 to 103, which objections were not taken on record by the Executing Court in view of the impugned order passed bel