Bonafide purchasers without notice of an original agreement can challenge a decree in a separate suit, as the Execution Court cannot adjudicate on the decree's collusiveness.

ORDER :

BIRENDRA KUMAR, J.

1. By order dated 10.02.2010 passed in Civil Original Suit No.282/2004 (58/97), the learned trial Judge has rejected the plaint under Order VII Rule 11 C.P.C. Since rejection of plaint is a ‘decree’ as defined in Section 2 of the Code of Civil Procedure, this appeal has been filed under Section 96 of C.P.C. challenging the aforesaid rejection.

2. A brief background of the case is that respondent No.1 herein namely Pushpchand, who was defendant No.1 of the suit entered into an agreement to purchase Khasra No.310 in village Kudi Bhagtasani, District and Tehsil Jodhpur from Original Defendant No.2-Late Kalu Ram @ Kalia and Original Defendant No.3- Late Pabu Ram @ Pabuda, both sons of late Chaila. On agreement not being performed by Original Defendant Nos.2 and 3, the respondent No.1-Pushpchand brought a suit for specific performance of contract vide Civil Suit No.71/1991 on 30.05.1991. During pendency of the suit, the said Kalu Ram sold his share in Khasra No.310 to 63 persons including the appellants on 29.06.1992 and the sale deed was registered on 07.10.1992. The purchasers got mutated in revenue record on 24.2.1993. Late Kalu Ram appeared in Suit No.71/1991 and filed written statement but did not disclose in the written statement that he had sold the suit property to the present appellants and others. However, by a separate petition, Kalu Ram informed the Court that he is an illiterate person and when the plaintiff was not performing his part of the contract, he already sold his share in the aforesaid Khasra to 63 persons.

3. Thereafter, plaintiff-Pushpchand filed an application for disclosure of the name of lis pendens purchasers but late Kalu Ram could disclose name of a few and stated in the petition that since the sale-deed is a registered document, plaintiff can obtain certified copy and get name of the purchasers. But the course adopted by the trial Court was that defence of Kalu Ram was rejected.

4. Pabu Ram filed separate written statement denying his signature on the separate agreement claimed by plaintiff- Pushpchand and clearly stated that he had not sold his share in the property to the plaintiff, however left the pairvi of the case and suit was decided ex parte against him. Since Kalu Ram had not disclosed the name of the lis pendens purchaser, his defence was struck down and thereafter Kalu Ram did not contest the suit.

5. Consequently, the suit was decreed in favour of plaintiff- Pushpchand by judgment and decree dated 18.04.1996.

6. For execution of the decree, Misc. Execution Case No.29/1996 was filed. The sale deed was executed in pursuance of the decree and the Executing Authority of the Court effected delivery of possession to the plaintiff on 21.06.1997 on paper in absence of Kalu. In the present suit, the plaintiffs/appellants have stated that cause of action arose on 21.06.1997 when the plaintiff attempted to forcefully dispossessed them.

7. Thereafter, almost all the 63 purchasers by different petitions filed under Order I Rule 10 C.P.C. desired to be impleaded in the execution proceeding as party. But all the petitions were rejected on 31.7.1997 on the ground that neither they were decree holder nor judgment debtor.

8. Thereafter, the plaintiffs and performa respondents filed Civil Suit No.58/1997 re-numbered as Civil Suit No.282/2004 praying therein for declaration that judgment and decree dated 18.04.1996 passed in Civil Suit No.71/1991 was collusive, invalid and void obtained by playing fraud and is not binding on the plaintiffs to the extent of their interest. Further prayer was for injunction against the defendants not to disturb possession of the plaintiffs.

9. In the suit, respondent No.1 filed an application under Order VII Rule 11 C.P.C. for rejection of the plaint and the plaint was rejected by the order under challenge on the ground that the plaintiffs/appellants herein had remedy under Order XXI Rule 97 and 99 C