ORDER

This appeal has been filed being aggrieved by the order passed by the 3rd Additional District Judge, Khandwa in MJC No. 31/12 ( Hukumchand vs. Namdev and Anr.) by which the appellants application under Order 21 Rule 97 r/w Section 106 of CPC has been dismissed.

2. The facts in nutshell giving rise to this appeal are that respondent No. 2 Mamta is the wife of appellant. She has executed an agreement to sale in favour of the plaintiff/decree holder- Respondent No. 1 and when the agreement to sale was not honored, the respondent No. 1 filed a Civil Suit before the 2nd Additional District Judge, Khandwa that was registered as Civil Suit No. 24-

A/11 and an ex parte decree was passed on 21-07-2011 by which the plaintiff/respondent No.1 suit was decreed and it was ordered to respondent No.2 to execute a sale deed of plot No. M20-MIG situated at Housing Board Colony, Khandwa, after receiving Rs.50, 000/- of the consideration amount.

The decree was not followed then the decree holder filed execution proceedings. In the execution proceedings the appellant filed an objection on the ground that he is the owner of the suit premises and the suit property was purchased as a 'benami' in the name of his wife Mamta-respondent No.2 and and she was not the owner and possession holder of the disputed property and as appellant is residing in the suit house.

3. In execution proceedings, the trial Court after recording the evidence has dismissed the petition,hence, this appeal.

4. Learned counsel for the appellant has submitted that the trial court has wrongly appreciated the evidence and have not properly considered the legal position that if any property is purchased in 'benami' in the name of his wife or any unmarried daughter, the provision of Benami Transactions ( Prohibition ) Act, 1988 are not applicable and to support his argument on this point, he has relied on the judgment of Jagdish Prasad Agarwal and Anr. vs. Rajkumar s/o- Radheshyam Agarwal and Anr 2006 (2) MPLJ 603 and he has further relied on the judgment of Hon'ble Apex Court in the case of Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and Anr (1997) 3 SCC 994 and submitted that by order 21 Rules 35, 97, 98, 99, 101 and 105, a stranger wants to occupy the possession and rights of possession holder then the executing Court is bound to decide the objections, even a stranger to proceedings may file the application and the order passed by the executing Court shall be treated as a decree.

5. Learned counsel for the respondent has submitted that the appellant has failed to prove that the plot was purchased by the appellant and disputed house was constructed by the appellant. He has further submitted that the documents were submitted before the trial Court in which it is clearly mentioned that basically the plot was allotted to one Rajesh Pawar (Ex.P/1) and from him as per Ex. P/2, the plot was transferred ( re-allotted to Mamta Dubey) daughter of Shri Damodar Prasad Dubey) and a lease deed was executed in favour of Mamta Dubey D/o- Damodar Prasad Dubey. Thus, name of the appellant is not mentioned. Judgment debtor as per Ex. P/5, the sanction of construction was allotted in favour of Kumari Mamta Dubey. The said fact finds place in Ex. P/6 hence, only on the basis of objection, the decree cannot be passed by the competent Court by allowing the objections as he was not party before the trial Court and the agreement to sale made by Mamta Bai is void and so, the appeal be dismissed.

6. Heard the parties.

7. The appellants have filed an application under Order 41 Rule 27 of CPC and by that submitted that additional documents be taken on record.

8. Learned counsel for the appellant has submitted that he has filed documents of GPF advance and the affidavit of the sister, and brother of the appellant and salary certificate, the documents of educational qualifications of his daughter and son.

9. Learned counsel for the respondents has submitted that the documents o