1988 PLP 1952 (CLC)

Asad Ali Bilgrami for Applicant. K.A. Wahab for Respondent. No.2 This Revision Application under section 115, C.P.C is filed by the applicant against the order of the first appellate Court dated 10th April, 1985. By the impugned judgment the learned first appellate Court rejected the appeal of the applicant which was preferred against the orders dated 27‑9‑1984 and 29‑9‑1984 rejecting the application under Order 47, Rule 1, C.P.C. read with section 12 (2) and Order 21, Rules 62 and 103,. C.P.C and application under Order 21, Rule 36, C.P.C section 1, C.P.C. and Order 1, Rule 10, C.P.C. The relevant facts for decision of the present Revision Application are as follows:

2. Respondent No.l who is the owner of the building in which the applicant claimed to be a tenant in respect of Flat No.l, on the first. floor, had entered into an agreement with the respondent No.2, who was the previous tenant in the building, on 9‑4‑1962. Under the aforesaid agreement the respondent No.2 surrendered the possession of the premises which were under his tenancy to respondent ,No.l who in turn agreed to reinduct respondent No.2 in the premises on re‑construction of the building. It appears that after re‑construction of the building the respondent No. 1 failed to reinduct the respondent No.2 in the premises as tenant whereupon respondent No.2 instituted Suit No. 152/64 on 27‑5‑1964 against respondent No.l. The above suit was decreed in favour of the respondent No.2 on 30th July, 1974 and it is not disputed that the decree passed in the above suit was maintained upto the Supreme Court. After termination of the litigation in Supreme Court between respondents 1 and 2, respondent No.2 applied for execution of the decree in Suit No. 152/64 being Execution No.2/74 against respondent No.l. It appears that the applicant also by about the same time instituted civil Suit No. 2417/74 against respondents 1 and 2 claiming permanent injunction in the suit. This suit was dismissed for non‑prosecution on 10‑12‑1981. The applicant, thereafter, instituted another Suit No.12/84 against respondents 1 and 2 containing identical prayers as were made in the earlier Suit No.2417/74. The plaint in the latter filed suit was rejected by the trial Judge and, thereafter, the applicant took no further proceeding against the order of the trial Court rejecting the plaint under Order 7, Rule 11, C.P.C. The applicant, however, filed an application before the Executing Court under section 47, C.P.C. read with section 12 (2) and Order 21, Rules 62 and 103, C.P.C. He also by about the same time moved another application under Order 1, Rule 10, C.P.C and Order 21, Rule 36 and section 151, C.P.C on the allegation that the applicant was holding property in her own right and in any case was not bound by the decree passed in Suit No. 152/64 in favour of respondent No.2 against respondent No.l. The learned trial Judge by two separate orders dismissed the above application holding that the petitioner having been put in possession of the premises by respondent No.l after institution of the suit was bound by the decree in the suit which was executable against the applicant. Dissatisfied with the above order of the Executing Court the applicant preferred first appeal in the District Court which too was dismissed. In this Revision Application Mr. Asad Ali Bilgrami, the learned counsel for the applicant has raised only one contention. It is contended by the learned counsel that the Courts below while dismissing the objections/ application of the applicant against the execution of the decree failed to notice that in view of the amendment made in section 52 of the Transfer of Property Act by the Sind Act 14 of 1932, the decree in the suit was not binding on the applicant as no notice as required by subsection (2) of section 52 was registered with the Registrar. It ;s accordingly, contended that the creation of tenancy fn favour of the applicant was. fully protected as the doctrine of lis pendens contained in section 52 of the Transfer of Property Act, was not at all attracted in the above case in the absence of registration of the required notice under subsection (2) of section 52 of the Transfer of Property Act. It is true that by Sind Act 14 of 1939 section 52 of the Transfer of Property Act has been amended in its application . to the Province of Sind but it is not necessary in this case to examine in detail the contention raised by the learned counsel for the applicant. The case of the applicant will fall and is fully covered under Rule 102 of Order 21 of the C.P.C. Rule 102 reads as follows: ‑ "102, Rules not applicable to transferee pendente lite.‑_ Nothing in rules 99 and 101 shall apply to resistance or obstruction in execution of a decree for the 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 .dispossession of any such person."

3. It is quite clear from the above rule that a person who has been transferred the property by the judgment‑debtor after the institution of the suit, in which a decree has been passed against the judgment‑debtor could not take advantage of Rules 99 and 101 of Order 21, C.P. C and resist/obstruct the execution of such decree. In the case before me the possession was delivered to the petitioner long after: institution of Suit No.152 of 1964 by respondent No.2 against respondent No.l. In these circumstances the trial Court as well as first appellate Court rightly rejected the application of the applicant on the ground that he was put in possession of the premises by respondent No. 1 after institution of Suit No. 152/64 and as such he was liable to be ejected from the premises. There is no merits in this Revision Application which is accordingly dismissed but in view of the fact that the respondent No.2 has already executed the decree and obtained possession of the property there will be no order as to costs. H . B . T . / H‑77/ K Revision application dismissed.