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Vimala Ammal v. C. Suseela And Others
Summary of Opinion — Civil Misc. Appeal (E.A. No. 4250 of 1986, etc.)
Factual and Procedural Background
This appeal challenges the dismissal dated 12-01-1990 of E.A. No. 4250 of 1986 in E.P. No. 523 of 1986 arising out of O.S. No. 3244 of 1983 (Assistant Judge, City Civil Court, Madras).
In O.S. No. 3244 of 1983 the first respondent obtained an ex parte decree on 23-03-1984 for specific performance of a sale agreement (Ex. A 58 dated 25-10-1982) executed in her favour for Rs. 48,125. The vendor in Ex. A 58 was the second respondent (the mother) and her children (respondents 3–8).
Pursuant to execution proceedings (E.P. No. 2297 of 1984) the first respondent obtained a sale deed in her favour and, in E.A. No. 523 of 1986, possession of the property on 07-11-1985 via court bailiff.
The appellant filed E.A. No. 4250 (under Order 21, Rule 99 CPC) seeking redelivery of the property on the basis that she had earlier purchased the property from the second respondent under a registered sale deed Ex. A 12 dated 10-03-1983 for Rs. 45,000 (allegedly executed prior to institution of the specific performance suit on 27-04-1983), had erected superstructures and was carrying on business on the property, and therefore could not be validly dispossessed under the decree obtained in favour of the first respondent.
The court below dismissed E.A. No. 4250 of 1986 on the ground that the earlier sale agreement (Ex. A 58 dated 25-10-1982) in favour of the first respondent preceded Ex. A 12 (10-03-1983) and that possession in execution was taken from the judgment-debtor, hence a petition under Order 21, Rule 99 CPC would not lie.
Legal Issues Presented
- Whether, despite the prior sale agreement (Ex. A 58 dated 25-10-1982) in favour of the first respondent, the appellant can acquire valid title by virtue of the later registered sale deed (Ex. A 12 dated 10-03-1983).
- Whether a subsequent transferee (the appellant) can retain the property under Section 19(b) of the Specific Relief Act (corresponding to S.27(b) of the 1877 Act) by proving (a) payment of full value and (b) payment in good faith and without notice of the prior contract, with the burden of proof on the subsequent purchaser.
- Whether E.A. No. 4250 of 1986 (under Order 21, Rule 99 CPC) is maintainable by the appellant as a person "other than the judgment-debtor" who was dispossessed.
- Whether the decree in O.S. No. 3244 of 1983 is a nullity because a necessary party (the subsequent purchaser) was not impleaded, and whether the execution court can be asked to consider that nullity.
Arguments of the Parties
Appellant's Arguments
- The appellant contended she purchased the property from the second respondent by registered sale deed (Ex. A 12 dated 10-03-1983) for Rs. 45,000, prior to the institution of the specific performance suit (27-04-1983), and therefore the decree could not be executed against her.
- She alleged she had built superstructures and was operating an iron business on the property and therefore could not be dispossessed pursuant to the decree in favour of the first respondent.
- The appellant argued (as advanced in written submissions) that the subsequent purchaser need not have been a party to the specific performance suit for the subsequent sale to be effective, and relied on authorities to show the subsequent purchaser may be bound or required to execute conveyance.
- The appellant also suggested collusion between the first respondent and the judgment-debtors, although no pleadings with particulars were placed on record in support of that contention.
First Respondent's Arguments
- The first respondent relied on the priority of Ex. A 58 (25-10-1982) and the ex parte decree obtained for specific performance, asserting that the later sale to the appellant could not defeat the prior agreement-holder's rights.
- It was contended that possession in execution was taken only from the judgment-debtor (vendor) and not from the appellant, hence Order 21, Rule 99 CPC did not apply.
- The first respondent challenged the appellant's status as a bona fide purchaser for value without notice, pointing to absence of necessary pleadings that the appellant paid full value and paid in good faith without notice, lack of examination of vendor evidence, missing receipts and original title deeds, and other gaps in proof.
- The respondent also argued that the execution court could not go beyond the decree in execution proceedings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Veerapalai v. Thadikana, AIR 1968 Mad 383 | Holds that after a prior agreement to sell, the owner cannot convey the property free of that agreement; a subsequent transferee can retain the property only if (1) he has paid the full value and (2) he paid in good faith and without notice of the prior contract; burden of proof on subsequent purchaser. | The court adopted this two-condition test as the legal standard to determine whether the appellant could retain title as a subsequent purchaser; found the lower court failed to apply this test and applied it itself when assessing pleadings and evidence. |
| Venamalai v. Thadibasa Vapriar, AIR 1968 Mad 383 | Same legal position as above (as cited in the opinion). | The court referred to this decision when concluding the appellant had not satisfied the two statutory/precedential conditions required of a bona fide purchaser for value without notice. |
| Manilal v. Badkulal, AIR 1953 SC 225 | Emphasises that the best evidence of the truth of a transaction is the evidence of the vendor (vendor's evidence should be adduced). | The court relied on this principle to criticise the appellant's failure to examine her vendor or the vendor's son, noting the absence of vendor testimony weakened the appellant's claim of bona fide purchase. |
| Chinne Vasgan v. Alamalu, 1975 I Mad LJ 263 | Holds that a subsequent purchaser with knowledge of a prior agreement is a necessary party in a suit for specific performance; decree should direct both the owner and the subsequent purchaser to execute conveyance; references S. 91 Indian Trust Act, 1892 (obligation to hold property for benefit of agreement-holder). | The court invoked this authority to support the proposition that the subsequent purchaser is a necessary party and that, if impleaded, may be ordered to execute conveyance; used to show the effect of notice and the duty under Section 91 ITA. |
| Chnnevannan v. Alamelu, 1975 I MLJ 263 | Relied upon earlier authorities (including Durga Prasad v. Deepchand and Appa Rao v. Upendra) to support the position regarding necessary parties and rights of subsequent purchasers. | Used as supporting authority for the line of decisions that a subsequent purchaser may hold title and must be joined or be ordered to join in conveyance, and that when not impleaded the decree may not affect the subsequent purchaser's title. |
| Durga Prasad v. Deepchand, AIR 1954 SC 75 | Authority relied upon in the chain of decisions about rights of subsequent purchasers and necessary parties. | Cited via other decisions to support the proposition that subsequent purchasers may have title and must be dealt with in the suit for specific performance. |
| Appa Rao v. Upendra, AIR 1953 Mad 409 | Authority in the line of cases regarding subsequent purchasers and necessary parties. | Relied on (through intermediate authorities) to demonstrate the established position on requiring subsequent purchasers to be parties or to be decreed to execute conveyance. |
| Rakesh Chandra v. Chuni Lal, (1970) 3 SCC 140 : AIR 1971 SC 1238 | Held that in situations where a subsequent purchaser exists, title may reside in the subsequent purchaser and he must necessarily join in the conveyance. | The court used this decision to assert that where the subsequent purchaser is a necessary party and is not impleaded, the title remains with the subsequent purchaser and the decree is ineffective as regards that purchaser. |
| Dwarika Prasad v. Harikant Prasad, (1973) 1 SCC 179 : AIR 1973 SC 655 | Same proposition as Rakesh Chandra — title may reside in the subsequent purchaser and he must join in conveyance. | Invoked to reinforce the principle that a subsequent purchaser's title must be respected unless he is impleaded and bound by the decree. |
| Vice Kishan Prasad v. Har Narain Singh, (1911) 33 All 272 (PC) | Defines "necessary parties" (who ought to have been joined) under Order 1, Rule 10(2) CPC. | The court relied on this authority to conclude that failure to join necessary parties renders a decree a nullity and therefore open to challenge at execution. |
| Purna Chandra Kundu v. Manubhai Devi, AIR 1937 Cal 156 | Holds that a purchaser from a judgment-debtor is entitled to apply under Order 21, Rule 99 CPC. | Used to counter the contention that the appellant was not a "person other than the judgment-debtor" and thus not entitled to seek relief under Order 21, Rule 99 CPC. |
| Kunud Nath Das v. Government Pleader, AIR 1936 Cal 349 : 34 Cri LJ 334 | Similar authority that a purchaser from a judgment-debtor may apply under Order 21, Rule 99 CPC. | Relied upon to support the proposition that Order 21, Rule 99 CPC is available to purchasers from judgment-debtors. |
| Varanasaya Sanskrit Vishwavidyalaya v. Dr. Rajkishore Tripathi, (1977) 1 SCC 279 : AIR 1977 SC 615 | Holds that collusion implies fraud and particulars of such plea must be given as required by Order 5, Rule 4 CPC. | The court invoked this authority to note that the appellant did not plead particulars of alleged collusion, and therefore could not rely on a bare allegation of collusion to impeach the decree. |
Court's Reasoning and Analysis
(This section follows the court's step-by-step legal analysis as set out in the opinion.)
- The court first identified that the lower court had not properly dealt with the central legal question: whether a subsequent purchaser (the appellant) could acquire rights under a later registered sale deed despite an earlier agreement of sale in favour of the decree-holder (first respondent).
- The court relied on Veerapalai v. Thadikana (AIR 1968 Mad 383) and Section 19(b) of the Specific Relief Act, 1963 to state the applicable legal test: a subsequent transferee can retain the property only if (a) he paid the full value and (b) he paid in good faith and without notice of the prior contract; the burden of proving these conditions rests on the subsequent purchaser.
- The court examined the appellant's pleadings and affidavit. It found that the appellant's affidavit merely averred that she purchased the property for "valuable consideration" and that the first respondent had no right, title or interest; it did not plead the essential facts required by Veerapalai — namely, that the full value was paid and that the purchase was in good faith and without notice of the prior contract.
- The court held that absence of the necessary pleadings was fatal: evidence cannot be considered on a point that has not been pleaded. Thus, even if some evidence existed, the appellant could not succeed on issues she had not properly pleaded.
- The court reviewed factual evidence the lower court had recorded and the admissions in depositions: (a) original title deeds were not given to the appellant (admitted by P.W.2); (b) the appellant did not examine the vendor or vendor's son though they were available (P.W.1); (c) P.W.1 admitted he did not investigate whether there was an earlier sale agreement and did not meet the vendor after dispossession; (d) receipts for instalments were not filed and dates of prior instalment payments were not stated in Ex. A 12; (e) registration copy of the sale deed was obtained after the date of execution.
- Taking these deficiencies together, the court concluded the appellant had not proved she was a bona fide purchaser for value without notice and had not discharged the burden cast by the precedent; therefore she could not retain title by reason of Ex. A 12 against the prior agreement-holder on that basis.
- The court then considered an alternate strand of authorities (Chinne Vasgan v. Alamalu and related decisions) holding that where a subsequent purchaser had knowledge of a prior agreement he is a necessary party to a suit for specific performance and may be ordered to execute conveyance in favour of the agreement-holder (reference to Section 91, Indian Trust Act, 1892). The court observed that in cases like Rakesh Chandra v. Chuni Lal and Dwarika Prasad v. Harikant Prasad the title resided in the subsequent purchaser and he had to join in conveyance.
- Applying these authorities, the court found that the decree in favour of the first respondent was obtained without impleading a necessary party (the subsequent purchaser). A decree passed without a necessary party is a nullity. The appellant had not been a party to the specific performance suit; consequently the decree could not conclusively affect her title.
- The court rejected the first respondent's contention that the execution court could not go beyond the decree. It held that where the decree is a nullity because a necessary party was not joined, that defect can be challenged at the execution stage.
- Regarding maintainability under Order 21, Rule 99 CPC, the court addressed the contention that the appellant was not "dispossessed" because possession was taken from the judgment-debtor. The court noted evidence (admissions by R.W.2, attestor P.W.2) that the appellant and her husband were present when possession was given and that possession had in fact been given to the appellant earlier by the vendor's son. The court relied on authorities (Purna Chandra Kundu v. Manubhai Devi and Kunud Nath Das v. Government Pleader) holding that a purchaser from a judgment-debtor can apply under Order 21, Rule 99 CPC and observed that Order 21, Rule 102 CPC did not apply because the sale to appellant preceded the suit for specific performance.
- Finally, on the allegation of collusion, the court noted there was no pleaded particulars; relying on Varanasaya Sanskrit Vishwavidyalaya v. Dr. Rajkishore Tripathi, the court stated that collusion implies fraud and particulars are required under Order 5, Rule 4 CPC — none were supplied here — so that contention could not be sustained.
Holding and Implications
HOLDING: The order of the lower Court is set aside and the Civil Miscellaneous Appeal is allowed. The court ordered re-delivery of the property within two months and awarded no costs.
Implications (direct effects on the parties):
- The appellant's application for redelivery (E.A. No. 4250) is allowed, and the appellant is to be re-delivered the property within two months.
- The decree obtained in favour of the first respondent in the specific performance suit is effectively set at cross-purposes insofar as it was obtained without impleading a necessary party (the subsequent purchaser); the court treated that failure as rendering the decree susceptible to challenge at execution.
- The court found the appellant had not pleaded or proved that she paid full value or that the purchase was in good faith and without notice of the prior contract; on that basis the appellant could not succeed on the "bona fide purchaser" defence alone, but the court nonetheless granted relief on the ground that the subsequent purchaser was not impleaded in the specific performance suit.
The opinion does not purport to lay down a novel legal principle; it applies established authorities concerning (a) the protection available to subsequent purchasers who pay full value in good faith without notice and (b) the requirement that necessary parties be joined so a decree is not a nullity. The direct and operative consequence is the redelivery order in favour of the appellant and the setting aside of the lower court's dismissal.
1. This Civil Misc. Appeal is against the dismissal order dated 12-1-1990 in E.A No. 4250 of 1986 in E.P No. 523 of 1986 in O.S No. 3244 of 1983 on the file of the Assistant Judge, City Civil Court, Madras. In the said suit in C.S No. 3244 of 1983 the first respondent obtained ex parte decree on 23-3-1984 for a specific performance of Ex.A 58 sale agreement dated 25-10-1982 executed in favour of the first respondent for a sale consideration of Rs. 48,125/-. The said Ex. A. 58 was by the second respondent, the mother, and her children, the respondents 3 to 8.
2. Subsequently to the decree, through E.P No. 2297, 1984 she got the sale deed in her favour and in the abovesaid E.A No. 523 of 1986 got possession on 7-11-1985 of the property sold, through the court-bailiff. But the appellant has filed the abovesaid E.A No. 4250 of 1985 under O. 21, R. 99 of the Code of Civil Procedure for redelivery of the suit property to her on the ground that she had purchased the said property from the second respondent for Rs. 45,000/- under the sale deed, Ex. A. 12 dated 10-3-1983 itself, even prior to filing of the abovesaid suit on 27-4-1983, that the abovesaid decree could not be executed against her, that the abovesaid decree was not valid and that he could not be dispossessed pursuant to the said decree. The appellant's further plea is that after purchasing the said property under Ex. A. 12 he had put up superstructures on the site of the property and was carrying on Iron business under the name and style “S.V Ramalings Nadar and Company.” The Court below has dismissed the said E.A No. 4250 of 1986 on the ground inter alia that the abovesaid sale agreement Ex.A 58 dated 25-10-1982 in favour of the first respondent-decree-holder, was prior to Ex.A 12 sale deed dated 10-3-1983 executed in favour of the appellant and that it could not be held that possession was taken in the said R.P proceedings from the appellant and consequently a petition under O. 21, R. 99 of the Code of Civil Procedure would not lie.
3. But the Court below has failed to advert to one important aspect. The main issue is whether depite the abovesaid prior sale agreement Ex.A 68 in favour of the first respondent, the appellant would get valid title to the property in question pursuant to the later sale deed Ex.A 12 in his favour. A decision of a Division Bench of this Court in Veerapalai v. Thadikana (AIR 1968 Mad 383) held as follows (at page Mad 385):—
“If a person, as the owner of the property, has entered into an agreement to sell the property, he cannot thereafter convey the same property to any other person, as after the prior agreement of sale, he cannot be said to be a free owner of the property. If he subsequently alienates the property he can alienate if only subject to the rights created under the prior agreement of sale.”
4. Section 19(b) of the Specific Relief Act, 1963 corresponding to S. 27(b) of the Specific Relief Act, 1877, also provides that specific performance of a contract may be enforced against any person claiming under any party to the contract by a title arising subsequent to the contract, except a transferee for sale who has paid his money in good faith and without notice of the original contract. After referring to this provision, the abovesaid decision of the Division Bench of this Court, points out that the plain language of the sub-sec. (b) shows that the subsequent transferee can retain the benefit of his transfer by purchase which, prima facie, he had no right to get, only after satisfying two conditions concurrently viz., (1) he must have paid the full value for which he purchased the property and (2) he must have paid it in good faith and without notice of the prior contract. Further, it was also observed therein that the burden of proof was upon the subsequent purchaser to establish these conditions in order that his rights might prevail over the prior agreement of sale. So the Court below should have taken note of the abovesaid legal position and should have seen the facts of the present case in that light. Evidently, on reading the order of the Court below, I find that the Court below has not is done so.
5. So, now it is for me to see the facts of the case in the light of the said legal position. In other words I have to see whether the appellant is a bona fide transferee for value i.e whether the appellant has satisfied the abovesaid two conditions mentioned in the abovesaid decision of the Division Bench of this Court viz., whether she has paid the full value for which she purchased the property and whether she has paid it in good faith and without notice of the prior contract, respondents 2 to 8 remain ex parte. Learned counsel for the first respondent points out that necessary plea in this regard has not been set up at all by the appellant. I also find from the affidavit filed by the appellant in support of Ex.A No. 4250 of 1985 that the only plea is as follows:—
“As stated above I purchased the property for valuable consideration and the said property with the building and the business have now been damaged and lost and I have been put to irreparable loss, hardship and suffering, I respectfully submit that the first respondent has no manner of right, title or interest in the aforesaid property as the property has been sold to me by the second respondent under the registered sale deed aforesaid and therefore second respondent ceased to have any interest in the property when the first respondent sought to disposses me.”
6. This plea thus only states that she purchased the property for valuable consideration. She neither plead that she paid the full value for which she purchased the property nor that she paid the full value for which she purchased the property nor that she paid it in good faith and without notice of the prior contract. So without the necessary plea the appellant cannot succeed in this regard. Even assuming there is some evidence regarding the same she cannot succeed since the settled law is that no amount of evidence can be looked into on a plea which has never put forward.
7. Learned counsel for the first respondent also points out that actually there is no evidence too in this regard. If the appellant was the bona fide purchaser for value without notice of the prior sale agreement she would have made necessary verifications, particularly she would have verified the original title deeds. It is admitted by P.W 2, the husband of the appellant that the original title deeds were not given to the appellant. The appellant has also not examined her vendor, though, P.W 1 admitted that there was no animosity with the said vendor and that the appellant could examine the vendor. Further, no doubt, P.W 1 deposed that it was not correct to say that they got the sale deed by force even though they were told that the original title deeds had been given away to the first respondent pursuant to the earlier sale agreement in favour of the first respondent. Yet, it is significant that in the next sentence of the deposition he deposed as follows:—
(Vernacular omitted)
That is, whether the sale deed was got by force despite being told that the original title deeds were with the first respondent pursuant to the earlier agreement in favour of the first respondent; could be ascertained “from them” that is, the above said vendor, vendor's son and the attestor to the document and these persons could have been examined by the appellant. But the appellant has not examined any one of them. In this connection learned counsel for the respondent relied on a decision in Manilal v. Badkulal (AIR 1953 SC 225) to emphasise that the best evidence being that of the vendor she or her son must have been examined by the appellant and that the appellant having failed to do so, no conclusion could be reached in this regard in her favour. On the other hand, the counsel for first respondent contended that the first respondent could not have examined the said vendor or her son because of the animosity pursuant to the legal proceedings initiated. Learned counsel also pointed out that P.W 1 admitted specifically that he did not investigate whether there was any earlier sale agreement. He also pointed out that P.W 1 admitted that after his dispossession through the Court bailiff he did not meet the vendor Utanawathi the second respondent or her son Selvan the fifth respondent. Normally if he is illegally dispossessed pursuant to the execution of a decree obtained by another party; the appellant or her husband P.W 1 would have immediately gone to the vendor and complained the matter. All these show that the appellant was not a bona fide purchaser. Even regarding payment of full value for which the appellant purchased the property under Ex. A. 12, learned counsel for the first respondent pointed out that even Ex. A. 12 does not give the dates on which the several alleged payments were made towards the total sale consideration of Rs. 45,000/-. The said sum is stated to have been paid in four instalments including the last instalment paid on the date of execution of the said sale deed. But, for the earlier 3 instalments of Rs. 10,000/-, Rs. 15,000/- and Rs. 10,000/- the sale deed does not give the dates of payment. Further though P.W 1 admitted that receipts were given for the above said earlier three instalments and that the said receipts were with him at the time of execution of Ex.A 12, he could not explain why dates of payments were not mentioned in the sale deed. Further these receipts were not filed into Court. But P.W 1 only deposed that these receipts had been taken back by the vendor. Normally, this cannot be believed. Further as stated above not only the criminal title deed was not at all seen by the appellant before the execution of the sale deed, but even the registration copy was obtained only on 15-3-1983 while the sale deed is executed on 10-3-1983. The lower Court also observes that the original title deeds were not filed by the appellant but only by the first respondent. Taking all these into consideration, the appellant cannot be taken to have satisfied the above said two conditions laid down in Venamalai v. Thadibasa Vapriar, AIR 1968 Mad 383.
8. On the other hand, learned counsel for the appallant distinguished the said decision rendered in AIR 1968 Mad 388, on the footing that, in the said case subsequent purchaser was a party in the specific performance suit. In the present case the appellant-subsequent purchaser was not a party in the above said specific performance suit in O.S 3244 of 1983,. Learned counsel also relied on the decision in Chinne Vasgan v. Alamalu (1975 I Mad LJ 263) which held that a subsequent purchaser with the knowledge of prior agreement to sell to another, was a necessary party in the suit by the latter for specific performance and that the decree should direct both the owner and the subsequent purchaser to execute conveyance in favour of the agreement holder. The following determination in the said decision are significant:
‘But if the purchase by the third party was with the knowledge of the agreement to sell, he will hold the property subject to the obligation under S. 91 of the Indian Trust Act, 1892. This section provides that where a persons acquires property with notice that another person has entered into an existing contract affecting that property of which specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract. Thus the obligation of holding as a trustee, is only to the extent necessary to give effect to the contract. It does not affect the passing of the title. In other words even where S. 91 of the Act applicable the transaction of sale is not made void, but the subsequent purchaser is under an obligation to convey the property to the agreement holder as and when he establishes his rights., …. The agreement holder can acquire title to the property only if a proper conveyance is executed by the subsequent purchaser as well …… These principles clearly show that the subsequent purchaser is a necessary party in a suit for specific performance and the decree should direct both the owner and the subsequent purchaser to execute the conveyance in favour of the agreement holder’. (Underlines are mine)
9. This Court in the abovesaid 1975 I MLJ 263 (Chnnevannan v. Alamelu) relied on Durga Prasad v. Deepchand, AIR 1954 SC 75 : 1954 All LJ 73 and Appa Rao v. Upendra (AIR 1953 Mad 409). In Rakesh Chandra v. Chuni Lal ((1970) 3 SCC 140 : AIR 1971 SC 1238) and Dwarika Prasad v. Harikant Prasad ((1973) 1 SCC 179 : AIR 1973 SC 655) also, it was held that in the above situation, the title resided in THE SUBSEQUENT PURCHASER and he had also to necessarily join in the conveyance. So where the appellant/subsequent purchaser is a necessary party, unless he is impleaded and a decree is got as indicated earlier in the above said decision, the title remained with the subsequent purchaser. Therefore, E.A No. 4250 of 1985 should have been allowed as prayed for.
10. No doubt the learned counsel for the first respondent contends that the execution Court cannot go beyond the decree. But this contention has no merit. First of all, the appellant was not a party to the suit at all. That apart, the decree is a nullity since the necessary party was not impleaded.
11. Necessary parties are parties who “ought to have been joined” under O. 1, R. 10(2), C.P.C that is, parties necessary to the constitution of the suit without whom no decree at all can be passed. (Vice Kishan Prasad v. Har Narain Singh, (1911) 33 All 272 (PC). It is settled law that a decree which is a nullity can be challenged even at the execution stage.
12. One other agreement of the first respondent is that the said E.A 4250 of 1986 is not maintainable under O. 21, R. 99, C.P.C which runs as follows:—
“Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.”
13. The first respondent's counsel's contention is that since the appellant was not “dispossessed” within the meaning of that expression in O. 21, R. 99, C.P.C in view of the fact that possession was got only from the judgment debtor and not from the appellant. But this contention is not tenable since R.W 2 the husband of the first respondent decree-holder himself admits that when possession was given, appellant and her husband were there but did not protest. Further small discrepancies in the description of property as found in Ex.A 10 patta obtained by the appellant and Ex.A 12 sale deed in favour of the appellant was also pointed out. But this cannot be put very such against the appellant. P.W 2 the attestor also deposed that pursuant to Ex.A 12, the property was measured and possession thereof was given to the appellant by the vendor's son Selum. Further, the Court below has held that the appellant was not a “person other than the judgment-debtor” since he has purchased the property from the judgment-debtor. But it has also been held in Purna Chandra Kundu v. Manubhai Devi (AIR 1937 Cal 156) and Kunud Nath Das v. Government Pleader, AIR 1936 Cal 349 : (34 Cri LJ 334) that a purchaser from a judgment-debtor is entitled to apply under O. 21, R. 99, C.P.C Further, O. 21, R. 102, C.P.C also will not apply since the sale under Ex.A 12 dated 10-3-1983 in favour of appellant was prior to the institution of the suit for specific performance on 27-4-1983. So, O. 21, R. 99, C.P.C is applicable.
14. One other argument of the appellant is that the sale agreement and the subsequent decree was as a result of collusion between the first respondent and the other respondents (judgment-debtors). But there is no plea by the appellant to that effect. The Supreme Court has even observed in Varanasaya Sanskrit Vishwavidyalaya v. Dr. Rajkishore Tripathi, (1977) 1 SCC 279 : AIR 1977 SC 615 : (1977 Lab IC 290) that collusion implies fraud and so particulars of the plea must be given as per O. 5, R. 4, C.P.C But there is no plea even, in the present case.
15. Therefore, the order of the Court below is set aside and the Civil Miscellaneous Appeal is allowed. No costs.
16. Re-delivery to be given within two months.
17. Appeal allowed.
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