Rights of parties in execution proceedings and implications of statutory charges under property laws.

JUDGMENT

This is an appeal against the dismissal of an application under Order 21 Rule 99 read with Rule 100 of the Code of Civil Procedure, 1908 (CPC).

2. The brief facts necessary for the disposal of the appeal are as follows:

The appellant/1^st petitioner along with the 2^nd petitioner, claiming that they had purchased a property having an extent of 58 cents in Survey No.102/14A, instituted the application for recovery stating that a portion of the property having an extent of 10 cents was sold in execution of judgment and decree in O.S.No.136/1994 without making him party to the proceedings. O.S.No.136/1994 was a suit for recovery of money based on an agreement of sale and its was decreed. In execution of the decree, an extent of 10 cents of land, the subject matter of execution proceeedings, was ultimately sold in public auction and that the 2^nd respondent purchased the property. Thereafter, when the property was delivered, an Amin was deputed for delivery of the property. After the delivery of the property was effected, the petitioners came up with an application stating that they are entitled to hold the property in exclusion to the rights of the decree holder and that the property cannot be sold in execution of the judgment and decree in O.S.No.136/1994. The executing court, after carefully considering the contentions of the petitioners, found that there is a charge under Section 55 (6)(b) of the Transfer of Property Act, 1882 , as regards the subject matter of O.S.No.136/1994 and therefore, the petitioners are not entitled to the relief sought for. Accordingly, the application was dismissed. Aggrieved, the petitioners preferred A.S.No.99/2008, which was also dismissed and hence, the present appeal.

3. Heard, Adv.J.Omprakash – learned counsel appearing for the appellant, Adv.K.R.Jalajamani – learned counsel appearing for the 1^st respondent and Adv.Aditya A.Shenoy - learned counsel appearing for respondents 2, 4 and 5.

4. On considering the submissions raised across the Bar, this Court is of the considered view that, no substantial question of law arises for consideration in the present appeal. It is indisputable that a 10 cents of property was sold in execution of judgment and decree in O.S.No.136/1994. The case of the appellant that he had purchased the property prior to the order of attachment being passed in the suit and therefore, he has a paramount title, cannot be accepted inasmuch as the decree passed in the suit will be a charge in terms of Section 55 (6)(b) of the Transfer of Property Act, 1882 . The grievance now pointed out is that, if the appellant was impleaded as a party to the proceedings, he could have sustained his plea for pointing out that the sale of 10 cents of property will ultimately affect his interest over the remaining extent of property. At present, it is pointed out that his entry to the remaining 48 cents is blocked because of the sale of 10 cents of property.

On an anxious consideration of the submissions raised across the Bar, this Court is of the considered view that the aforesaid plea cannot be raised in an application under Order 21 Rule 99 read with Rule 100 of the CPC, 1908. If the appellant has any independent right to be asserted, he is free to do so in an appropriately instituted proceeding against the 2^nd respondent. Suffice to say, since the courts below have found that the sale in favour of the appellant was during the pendency of the proceedings and that a statutory charge is created over the decree schedule property in O.S.No.136/1994, no relief could be granted to the appellant in the present proceedings. Therefore, this appeal is dismissed without prejudice to the rights of the appellant to assert any easementary right, if any, in accordance with law.

Sd/-