Andhra HC (Pre-Telangana)
Muppidi Dora Reddy vs Bollareddy Ramakrishna Reddy And Ors. on 31 December, 2002
Equivalent citations: AIR2003AP299, AIR 2003 ANDHRA PRADESH 299
JUDGMENT C.Y. Somayajulu, J.
1. Second respondent obtained a decree in O.S. No. 146 of 1981 against the third respondent and another and brought the property belonging to third respondent to sale in execution of the said decree. First respondent figured as a highest bidder. Appellant filed E.A. No. 345 of 1990 objecting to the delivery of property purchased by the first respondent in the Court auction claiming tenancy rights over the said property. The Executing Court holding that in as much as tenancy alleged is subsequent to the filing of the suit, the same is hit by Rule 102 of Order 21 C.P.C, and dismissed the E.A. On appeal, the District Judge, Warangal, confirmed the order of the Executing Court. Hence this Second Appeal.
2. The contention of the learned counsel for the appellant is that the failure of the Courts below to take into consideration the fact that the appellant filed A.T.C. No. 42 of 1990 seeking a declaration of his tenancy and injunction against the third respondent, from interfering with his possession resulted in grave injustice to the appellant. It is his contention that since the injunction granted by the Tenancy Court is subsisting first respondent, who also is bound by the said order of injunction, cannot interfere with or take possession of the property which is in the occupation of the appellant as tenant in view of Rule 96 of Order 21 CPC.
3. From the record it is seen that the original judgment debtor died during the pendency of the suit, and thereafter appellant also was brought on record as one of his legal representatives. Therefore, appellant would also be one of the judgment debtors and so he cannot maintain an objection petition. This apart the Executive Court after taking into consideration the fact that the case of the appellant is that he took the property that was brought to auction on lease on 01.06.1985, when the suit was decreed as long back as 01.08.1981, held that the alleged lease in favour of the appellant is hit by the doctrine of lis pendence and also Rule 102 of Order 21 C.P.C. The first appellate Court rightly held that DEV RAJ DOGRA Vs. GYAN CHAND JAIN, and GHAN SHYAM DAS GUPTA Vs. ANANT KUMAR SINHA, , are of no help to the appellant because in those cases applicability of Section 52 of the Transfer of Property Act and Rule 102 of Order 21 C.P.C was not considered. In S.G. FILMS EXCHANGE Vs. BRIJNATH SINGAJI, , the lease was created after the property was attached. Therefore, in view Section 64 C.P.C., which lays down that private alienation of property attached is void, the Supreme Court in that case held that the lease created after attachment is void. In this case, there is no attachment. But, since it is the case of the appellant himself that he took the property on lease subsequent to decree passed in this case, the tenancy alleged is hit by Rule 102 of Order 21 C.P.C., which lays down that Rules 98 and 100 would not apply to resistance or obstruction in execution of a decree for possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. In this case, since the suit was decreed on 01.08.1981 and since the lease in favour of the appellant even according to the appellant is in 1988, i.e., long subsequent to the decree, I find no merits in this appeal and so the Second Appeal is dismissed with costs.