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REPLY OF THE DECREE HOLDER:-

On the other hand, DH stated that he had not executed any documents of alleged sale in favour of Sh. Hakikat Ali on 9-12- 2003 and the same are forged and fabricated. He also stated that when he himself was not in possession of the suit property even till the year 2004 after dispossession since year 2000, then how he could give its physical possession to Sh. Hakikat Ali as mentioned in the alleged sale documents of the year 2003. He challenged the genuineness of claim of the respondent being of bonafide purchaser as well as pointed out various defects in the chain of documents. As per DH, Sh. Margoob Ahmed during pendency of the execution could not sell the suit property to anyone due to bar of doctrine of lis-pendence and if any such transaction takes place, then the same is illegal. According to DH, respondent has stepped into the shoes of Sh. Margoob Ahmed and once the objections of Sh. Margoob Ahmed were dismissed by the executing court on 19-2-2010, then fresh objections cannot be filed by his successor in interest who may be the present respondent.

Whether during pendency of a litigation, transaction of disputed property without permission of the court is permissible/Question of lis pendence (ISSUE no. 3) Sh. Margoob Ahmed allegedly sold the suit property to the present respondent on 12-1-2007 and lost his all rights and interest in the suit property on that day but he continued to pursue with his objections filed in the execution petition of the DH till the same were dismissed on 19-2-2010. He thereafter never challenged this order in any higher court. It clearly leads to the inference that some trick was being played by Sh. Margoob Ahmed with the court and the alleged sale is nothing but a fictitious transaction to deny the DH to the benefit of his decree dated 28-9-2004.

Otherwise also, the purchase of the suit property during pendency of the litigation by the respondent is not permissible under law without permission of the court and is hit by the principles of lis-pendence under section 52 of Transfer of Property Act. The detail reasoning can be found below while dealing with issue no. 4 which leads to the conclusion that sale transaction in favour of respondent is also fictitious and sale deed dated 12-1- 2007 Ex. OW2/1 is a manipulated document. Ld. Executing Court has not rightly given findings on this issue so the same is liable to be set aside.

In such situation, respondent cannot be held as a bonafide purchaser of the suit property. Furthermore, the suit property could not have been purchased by him during pendency of the execution proceedings before the ld. Executing Court. The doctrine of lis-pendence prohibits any such transaction especially when it is not a bonafide transaction but is carried out to defeat the rights of one party. The finding of the ld. Executing Court that DH himself had sold the suit property to Sh. Hakikat Ali which finally came in the hands of the respondent so this principle of lis- pendence is not applicable is not correct because it is held above that DH never sold the property to Sh. Hakikat Ali. Had the DH sold the property in the year 2003, then he would not have pursued the litigations for the last 12 years and contested the claims of different persons from one court to another. Ld. Executing Court was not correct in dismissing the execution merely on one ground that during cross examination, DH had denied his signatures on photocopy of his affidavit Ex. DW1/3 in execution no. 14/04. Raising presumption by ld. Executing Court that denial of signatures on one affidavit by DH develops habbit of denial everything including sale of suit property on his part is not correct. Ld. Executing court did not try to find out what was the reason to deny the signatures by the DH, whether it was a confusion or old age or weak eyesight or absence of clarity of signatures on photocopy or any other reasons. Had ld. Executing Court looked into the orders passed from time to time in that execution proceedings no. 14/04, then it must have come to know that DH was strongly pursuing his matters even in respect of which he denied his affidavit. Thus, it can be said that mere denial of signatures on one affidavit was not sufficient to hold that DH had developed habbit to deny everything including sale of the suit property. The argument raised by counsel for the DH that objections are raised one after another with the sole motive to delay execution is causing serious prejudice to the DH is correct. Accordingly, the objections filed by the respondent are liable to be rejected. The findings of ld. Executing Court on this issue are also held not correct.