JUDGMENT

Harsimran Singh Sethi, J. (Oral)

CM-3637-CII-2023

Present application has been filed for recalling the order dated 20.02.2023 passed by this Court by which, the main revision petition as well as CM-15123-CII-2022 was dismissed for non-prosecution.

2. Keeping in view the averments made in the present application, which are duly supported by an affidavit, the application is allowed. Order dated 20.02.2023 passed by this Court is recalled and the main revision petition as well as civil miscellaneous application is ordered to be restored to its original number and is taken up for hearing today itself.

CR-5233-2019

3. In the present revision petition, challenge is to order dated 21.05.2019 (Annexure P/4), which has been passed in execution of the judgment and decree of the trial Court dated 13.01.2010, which has already attained finality up to the Hon'ble Supreme Court of India. The petitioner is the one, who had purchased the property in question not only during the pendency of the civil suit filed in which decree dated 13.01.2010 was passed but is also the beneficiary of a sale deed despite the fact that the original owner of the property was restrained from alienating the property in question. Not only this, petitioner herein was party to the litigation even up to the Hon'ble Supreme Court of India but the said litigation has remained unsuccessful qua the claim of the decree holder.

4. The argument which is being raised by the learned counsel for the petitioner is that once there was no direction by the Court below for handing over the possession of the property in question, the direction by the Executing Court to the petitioner, who is a subsequent purchase, having purchased the property in question during the pendency of the litigation property, cannot be directed to hand over the possession of the property in question to the respondent/decree holder even if, the said property was sold to the petitioner in contravention of an interim order of the competent Court of law.

5. Learned counsel for the respondent-decree holder submits that the objections are being filed by the petitioner only to retain the property in question though, the said property was purchased by the petitioner during the pendency of the suit filed by the decree holder, keeping in view the lis pendens, no benefit of the said sale can be given to the petitioner-objector especially, when the sale was effected in contravention of an order passed by a competent Court of law.

6. Further, learned counsel for the respondent-decree holder submits that keeping in view the settled principle of law settled by the Hon'ble Supreme Court of India in Civil Appeal No.2726-2022 titled as Manickam @ Thandapani and another v. Vasantha decided on 05.04.2022, the relief of possession is inherited in the suit for specific performance.

7. I have heard learned counsel for the parties and have gone through the record with their able assistance.

8. The civil suit was filed by the decree holder seeking specific performance in the year 1993 whereas, the property in question was purchased by the petitioner in the year 1997. Further, it has already come on record in the judgment and decree of the Lower Appellate Court dated 07.12.2016 that defendant No.3 i.e. original owner was restrained from alienating the property in question but the said property was still sold in favour of the defendants No.4 and 5 ignoring the said restriction imposed by the competent Court of law and the petitioner herein was defendant No.5 before the Lower Appellate Court. This shows as to what modus operandi was being maintained to oust the claim of the decree holder even during the pendency