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TMI Blog2024 (10) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... for fresh consideration, leaving all the issues including the independent right, title or interest claimed by the respondents in the property in question, to be adjudicated therein - Appeal dismissed. - PANKAJ MITHAL And R. MAHADEVAN , JJ. JUDGMENT R. MAHADEVAN, J. Heard Mr. Sanand Ramakrishnan, learned counsel for the appellants and Mrs.Nishe Rajen Shonker, learned counsel for the Respondent. 2. These Civil Appeals are preferred against the judgment and order dated 11.11.2011 passed by the High Court of Kerala at Ernakulam Hereinafter shortly referred to as the High Court in E.F.A Nos.6 and 7 of 1998, whereby, the High Court allowed the said appeals and remanded the matter to the trial Court for fresh consideration. 3. Succinctly stated facts are that the appellants are the legal representatives of the original plaintiff / decree holder viz., Padmakshy (deceased), who had filed a suit in O.S.No.38 of 1956 before the Sub Court, Parur, for partition and separate possession of her share in the plaint schedule 13 items of immovable properties. The Sub Court, Parur, passed a preliminary decree on 23.10.1958. Subsequently, the said suit was transferred to the file of the Additional Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred E.A.No.1 of 1995 in E.P. No.4 of 1991under Order XXI Rule 99 of the Civil Procedure Code For short, CPC for redelivery of the property mentioned in Ex.C2 plan, claiming independent right, title and interest in the same. Along with this application, he also filed E.A.No.2 of 1995 seeking an order of injunction restraining the plaintiff from committing waste till the disposal of EA No.1 of 1995; and E.A.No.3 of 1995 for recovery of damages to the tune of Rs.25,000/- from the plaintiff for having committed waste in the property. All the three applications were jointly heard and were dismissed, by a common order dated 12.08.1997. 7. Aggrieved by the aforesaid order passed in E.A. Nos.1 and 3 of 1995, the said Raghuthaman filed Execution First Appeals viz., EFA Nos.6 of 1998 and 7 of 1998, which came to be dismissed by the High Court, by judgment dated 30.05.2007. Seeking to review the said judgment, the respondents herein, who are the legal representatives of the said Raghuthaman, filed R.P.Nos.1107 and 934 of 2007, which came to be allowed, by order dated 22.03.2010. Pursuant to the same, E.F.A Nos.6 and 7 of 1998 were re-heard and were eventually, allowed by the High Court, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant No.10. Pursuant to the order of the Executing Court, he was dispossessed from the subject property, in which, he was occupying and the possession was handed over to the plaintiff / decree holder. After repeated challenge, the applications preferred by the predecessor of the respondents seeking re-delivery of possession and damages, contending inter alia that the Execution Petition was barred by limitation, came to be allowed and the matter was remanded to the trial Court for fresh consideration, by the judgment impugned herein. 13. It was the specific plea of the appellants that the predecessor of the respondents being a pendente lite transferee, is not entitled to file an application under Order XXI Rule 99 CPC and raise the question of limitation of the Execution Petition, so as to deprive the right of the appellants to enjoy the fruits of the decree. 14. On a reading of Order XXI Rule 99 CPC, it is lucid that 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere fact that RSD was executed during the pendency of the underlying suit does not automatically render it null and void. On this ground alone, we find the impugned order to be wholly erroneous as it employs Section 52 of the Act to nullify RSD and on that basis, concludes that the impleadment application is untenable. Contrary to this approach of the High Court, the law on impleadment of subsequent transferees, as established by this Court has evolved in a manner that liberally enables subsequent transferees to protect their interests in recognition of the possibility that the transferor pendente lite may not defend the title or may collude with the plaintiff therein (see the decision of this Court in Amit Kumar Shaw v. Farida Khatoon [Amit Kumar Shaw v. Farida Khatoon, (2005) 11 SCC 403] A. Nawab John v. V.N. Subramaniyam[A. Nawab John v. V.N. Subramaniyam, (2012) 7 SCC 738 : (2012) 4 SCC (Civ) 324] ). 16. The difference between the rights of a decree holder qua a third party to the suit and the right of a third party after being dispossessed has been laid down by this Court in Sriram Housing Finance Investment (India) Ltd. v. Omesh Mishra Memorial Charitable Trust, (2022) 15 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r entitled to make an application under Rule 97 nor Rule 99 for the reasons stated above. Accordingly, we find no substance in the argument raised by the learned counsel for the appellant. Therefore, once an application under Order 21 Rule 99 is filed, it is incumbent upon the Trial Court to consider all the rival claims including the right title and interest of the parties under Order 21 Rule 101 which bars a separate suit by mandating the execution court to decide the dispute. 17. As regards the question of limitation for execution of a decree passed in the suit for partition, this Court, in the decision in Chiranji Lal (supra), has categorically held that the time begins to run from the date of final decree and not from the date on which it is engrossed on the stamp paper. For better appreciation, the relevant passage of the said decision is reproduced below: 24. A decree in a suit for partition declares the rights of the parties in the immovable properties and divides the shares by metes and bounds. Since a decree in a suit for partition creates rights and liabilities of the parties with respect to the immovable properties, it is considered as an instrument liable for the payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion provided under Article 136 of the Act would start only thereafter as and when the decree is engrossed thereupon. The starting of period of limitation for execution of a partition decree cannot be made contingent upon the engrossment of the decree on the stamp paper. The engrossment of the decree on stamp paper would relate back to the date of the decree, namely, 7th August, 1981, in the present case. In this view the execution application filed on 21st March, 1994 was time barred having been filed beyond the period of twelve years prescribed under Article 136 of the Act. The High Court committed illegality in coming to the conclusion that it was not barred by limitation. 18. The above judgment was relied upon by the Constitutional Bench of this Court while deciding the validity of an unstamped agreement, wherein it was observed as under: Interplay Between Arbitration Agreements under A C Act, 1996 Stamp Act, 1899, In re, (2024) 6 SCC 1 : 2023 SCC OnLine SC 1666 255. In Chiranji Lal v. Hari Das [Chiranji Lal v. Hari Das, (2005) 10 SCC 746] , a three-Judge Bench of this Court rejected the contention that an unstamped preliminary decree is not enforceable and, therefore, the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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