JUDGMENT

This Appeal has been filed to set aside the order, dated 18.09.2013 in E.A.No.9 of 2009 in E.P.No.29 of 2008 in O.S.No.3 of 2006, on the file of the II Additional District Court, Thoothukudi.

2. The 3rd party/Claimant has filed an application in E.A.No.9 of 2009 in E.P.No.29 of 2008 in O.S.No.3 of 2006 on the file of the II Additional District Court, Thoothukudi, under Order 21 Rule 58 of the Civil Procedure Code to declare that the petitioner is the lawful owner of the schedule mentioed property and hence, allow the claim petition with reference to the schedule mentioned property alone shown as 1st schedule in O.S.No.3 of 2006 and the same was allowed on 18.09.2013. Against the said order, the Appellant/decree holder is before this Court.

3. Heard on either side and perused the material documents available on record.

4.The appellant has obtained a decree in favour of him and against the respondent Nos.2 & 3 herein. Since the respondent Nos.2 & 3 have not complied with the Judgment and Decree passed by the trial Court, the appellant has filed a execution petition in E.P.No.29 of 2008. During the pendency of the said E.P., the 1st respondent herein had filed an application in E.A.No.9 of 2009, claiming that the first respondent is a bonafide purchaser. The Executing Court has allowed the claim application filed by the 1st respondent herein. Aggrieved over the said order, the decree holder is before this Court as appellant by way of this Civil Miscellaneous Appeal.

5.According to the appellant, he has entered into an agreement with the respondent Nos.2 & 3 and also obtained decree in favour of him.

6.According to the first respondent, the so called bonafide purchaser stated that she is a bonafide purchaser for valuable consideration, without knowing the defect of title or agreement or encumbrance.

7. The case of the first respondent is that she has purchased the petition mentioned property, by way of a registered sale deed, dated 22.12.2005 and she is a bonafide purchaser for valuable consideration and paid a sum of Rs.4,50,000/-to the 2nd respondent. The respondent Nos.2 & 3 have handed over the original title deed and the original Will and they have colluded with the appellant and created an anti-dated sale agreement to sell the suit properties and other properties owned by the 3rd respondent.

8. The suit in O.S.No.3 of 2006 filed on 09.02.2006, but the sale deed was executed in favour of the 1st respondent as earlier as on 22.12.2005. The appellant did not impleaded the 1st respondent herein as a party to the suit. The 1st respondent knowing the fact, since she is in possession, only at the time of taking delivery and therefore, she has filed a claim petition in E.A.No.9 of 2009. Therefore, she is a bonafide purchaser for valuable consideration, without knowing the sale agreement Ex.A.1 in the suit. The 1st respondent is in possession of the property. Therefore, the Executing Court has rightly accepted the contention of the 1st respondent and allowed the said execution application in E.A.No.9 of 2009. There is no merit in the appal. The learned counsel appearing for the 1st respondent relied upon the Judgment reported in 2014-4-L.W. 686, in the case of K.Rajendran Vs. K.Chinnappa Gounder and another.

9. The specific case of the appellant is that he entered into an agreement with respondent Nos.2 & 3. Though, they denied the same, he got decree in his favour.

10.The respondent Nos.2 & 3 are the brothers. The 1st respondent/claim petitioner is the cousin sister of the respondent Nos.2 & 3 and they are residing under the same roof, namely, in the suit property.

11.The 1st respondent/claim petitioner's claim is only, in order to defeat the right of the appellant, she colluded with the respondent Nos.2 & 3 and created the document Ex.P.1 sale deed. Though, they have stated that she got an agreement and encumbrance certificate prior to the agreement of the appellant with the respondent Nos.2 & 3, she has not produced the agreement a