Singh, Mr. Sudip and Mr. AnkitKumar, Advocates., Advocates.) v. S/O LATE

order dated 03.08.1998, directed the parties to maintain status quo in respect of the ground and basement floors of the suit property. In parallel, vide order dated 05.08.1998, a Local Commissioner was appointed to inspect the premises, who submitted a report dated 06.08.1998, affirming that, as on that date, only a basement approximately measuring 14 x 20 sq. ft., existed. Thereafter, on 10.11.1998, upon an application being filed by respondents no. 2 and 3 in CS(OS) No. 1571/1998, the Court modified the earlier status Signature Not Verified Digitally Signed By:PRIYA Signing Date:26.03.2025 18:38:32 3 Signature Not Verified Digitally Signed By:PURUSHAINDRA KUMAR KAURAV quo order and confined it exclusively to the basement, in consonance with the admitted position between the parties that the subject matter of the lis in CS(OS) No. 1571/1998 related solely to the basement of the suit property, as contemplated in the Tripartite Agreement to Sell. 6. On 28.01.2003, respondent no. 2 – judgment debtor, purportedly in violation of the subsisting status quo order, executed a sale deed in favour of M/s ESSEMM Realtors, thereby, purporting to alienate a portion of the basement. It is pertinent to note that the said sale deed records that, on

20.01.2003, an area admeasuring 450 sq. ft. out of the total 490 sq. ft. constructed in the basement had been sold. 7. Subsequently, vide judgment and decree dated 21.10.2011 passed in CS(OS) No. 1571/1998, the suit was decreed in favour of respondent no. 1 – decree holder, granting relief in respect of the entire basement measuring 1172 sq. ft. While doing so, the Court categorically held that the sale deed executed in favour of M/s ESSEMM Realtors and their representatives, being defendants no. 3 and 4 in the suit, was in breach of the injunction order of the Court and, therefore, void and non est in law. The relevant portion of the judgment reads as under:- “13 …It would thus be seen that as per this document, the basement constructed initially on Property No. A-249 Defence Colony was 290 sq. ft, which is contrary to the plea taken in the written statement, where the constructed area of basement is stated to be 251.25 sq. ft. This sale deed clearly shows that as on 20th January, 2003 as much as 890 sq.feet of the basement had been constructed on Property No. 249, Defence Colony, out of which area measuring 450 sq. ft. was sold by defendant No. 1 to Mr. Sanjay Sharma and Mr. Manoj Kain for a consideration of Rs 1 lac. Since under the agreement dated 27 March 1997, the defendants had to construct basement to the extent of maximum permissible coverage, which would mean about 1172 sq. ft., it is difficult to dispute that the plaintiff is entitled to specific Signature Not Verified Digitally Signed By:PRIYA Signing Date:26.03.2025 18:38:32 4 Signature Not Verified Digitally Signed By:PURUSHAINDRA KUMAR KAURAV performance of the agreement dated 27th March, 1997 at least to the extent of the whole of the basement which presently stands constructed on Property No. A-249, Defence Colony. Even if only 251.25 or 290 sq. ft of the basement was constructed initially and the rest was constructed later as stated in the sale deed Ex.CW-2/PX- 1, that would make no difference to the case of the plaintiff since it is entitled to the whole of the basement which would have been legally constructed on this property. It would_be pertinent to note here that it is the Building Byelaws, 1983 which were in force at the time the agreement to sell was executed and the permissible area of the basement under 7 those byelaws comes to about 1172 sq. ft. *** 19…Thus, the lease deed and the sale deed executed by defendant No. 1 in favour of Mr. Sanjay Sharma and Mr. Manoj Kain being in violation of the injunction order passedby this Court have to be treated as a nullity and non est in the eyes of law. The plaintiff therefore needs not seek cancellation of these documents in order to claim specific performance of the agreement to sell dated 27th March, 1997.”

8. However, pursuant to the judgment and decree dated 21.10.2011 passed in CS(OS) No. 1571/1998, a revised judgment and decree dated

10.10.2012 came to be passed, modifying the operative directions in view of the directions passed earlier in I.A. No. 5530/2004. As per the modified decree, the amount deposited by the decree holder was directed to be paid to judgment debtors no. 3 and no. 4 after judgment debtor no. 1 executed the sale deed in favour of the decree holder. 9. Aggrieved thereby, judgment debtors no. 3 and no. 4 preferred an appeal, RFA(OS) No. 20/2012, which was dismissed by the Division Bench vide order dated 21.05.2012. The Court affirmed the judgment of the learned Single Judge, upholding the view that the sale deed executed in favour of judgment debtors no. 3 and 4 during the pendency of the suit, and in breach of the status quo order, was hit by the doctrine enshrined in Section 52 of the Transfer of Property Act, 1882 [TPA]. Nevertheless, the Court directed that a sum of Rs. 2,00,000/- deposited by the decree holder be paid to judgment Signature Not Verified Digitally Signed By:PRIYA Signing Date:26.03.2025 18:38:32 5 Signature Not Verified Digitally Signed By:PURUSHAINDRA KUMAR KAURAV debtors no. 3 and 4 therein. Thereafter, the decree holder instituted Execution Petition No. 127/2017 in CS(OS) No. 1571/1998 on 03.10.2012. 10. The judgment debtors no. 3 and no. 4 further carried the matter to the Supreme Court by way of a Special Leave Petition, which also came to be dismissed. Consequently, the finding that the sale deed in favour of judgment debtors no. 3 and 4 was executed during the pendency of the suit and in violation of the subsisting interim injunction, rendering it voidable at the option of the decree holder, has attained finality and is no longer open to challenge. 11. Thereafter, having exhausted their remedies, judgment debtors no. 3 and 4 instituted a fresh suit, being Civil Suit No. 39 of 2016 before the learned District Judge, South District, Saket Courts, alleging that the decree dated 21.10.2011 was obtained by way of collusion. This suit also came to be dismissed by the Court vide order dated 27.09.2016. 12. As noted earlier, on 03.10.2012, Execution Petition No. 127/2017 in CS(OS) 1571/1998 was filed by the respondent no.1-decree holder. On

31.10.2018, a Bailiff, executing warrants of possession, visited the property, including the rear basement, which was in the possession of the appellant- objector herein. Upon becoming aware of the proceedings, on 19.12.2018, the appellant-objector inspected the records of the Court and thereafter, filed an application under Order XXI Rule 97 CPC, challenging the execution of the judgement and decree with respect to the rear basement. 13. On 08.07.2023, the Executing Court dismissed the objection application under Order XXI Rule 97 CPC. Aggrieved by the said dismissal, Signature Not Verified Digitally Signed By:PRIYA Signing Date:26.03.2025 18:38:32 6 Signature Not Verified Digitally Signed By:PURUSHAINDRA KUMAR KAURAV on 27.09.2023, the appellant-objector filed the present appeal challenging the order of the Executing Court. Submissions on behalf of the Appellant-Objector: 14. Mr. Kanwal Chaudhary, learned counsel appearing on behalf of the appellant-objector, has made the following broad submissions:- i. At the outset, learned counsel submits that the appellant-objector is the sole, absolute, and registered owner of the rear basement of suit property, admeasuring approximately 600 sq. ft. According to him, the said ownership is established vide a registered sale deed dated

07.08.2000, bearing Registration No. 7449, Addl. Book No. 2, Vol. No. 200, executed before the Sub-Registrar, New Delhi. Learned counsel further submits that the appellant-objector has been in continuous and uninterrupted possession of the rear basement since the year 2000. ii. He further submits that, in terms of Notification dated 27.11.1998 being No. K-12016/5/79-DDII2A/IB issued under the Building Bye- Laws, basements in plotted developments were not included in the Floor Area Ratio [FAR]. He contends that the respondent-judgment debtor undertook the construction of the portion of the basement, currently in possession of the appellant-objector, only after the amendment to the bye-laws. Consequently, the appellant-objector purchased the said portion in the year 2000, subsequent to the amendment. Thus, he contends that he has acquired the lawful ownership and possession of the rear basement in accordance with the prevailing regulatory framework. Signature Not Verified Digitally Signed By:PRIYA Signing Date:26.03.2025 18:38:32 7 Signature Not Verified Digitally Signed By:PURUSHAINDRA KUMAR KAURAV iii. Elaborating on the layout of the property and the chronology of its construction, learned counsel submits that the basement of the property in question consists of two distinct portions, i.e. the Front Basement and the Rear Basement. The Front Basement, admeasuring 251 sq. ft., was constructed alongside the main building during 1997- 98 as per the originally approved sanctioned plan. iv. The said Front Basement admeasuring 251 sq. ft. was the sole subject matter of CS (OS) No. 1571/1998, the suit for specific performance, which was instituted on 30.07.1998 by the respondent no.1-decree holder against the respondents no.2 and no.3-judgment debtors. At the time of institution of the suit for specific performance, the Rear Basement neither existed nor was permissible under the prevailing building regulations. v. According to learned counsel, only upon the amendment in the bye- through Notification No. K-12016/5/79-DDII2A/IB dated

27.11.1998, the basements in plotted developments came to be excluded from the Floor Area Ratio [FAR] and therefore, the Rear Basement became permissible and was subsequently constructed by the respondent no.1-decree holders. vi. He further submits that on 31.10.2018, the bailiff visited the suit property with warrants of possession issued by the Executing Court in Execution Petition No. 127/2017 in CS(OS) No. 1571/1998 and sought to inspect the rear basement for the purpose of taking possession. Signature Not Verified Digitally Signed By:PRIYA Signing Date:26.03.2025 18:38:32 8 Signature Not Verified Digitally Signed By:PURUSHAINDRA KUMAR KAURAV vii. He contends that the Executing Court erroneously attached the entire basement floor of the property without being apprised that the basement consisted of two distinct portions. He submits that the bailiff, at the time of execution, neither possessed a site plan nor had any measurement of the basement portions. According to him, the same led to an erroneous assumption that the entire basement was covered under the decree passed by the Court in CS(OS) No. 1571/1998. Learned counsel further contends that the plaintiff-decree holder had deliberately concealed these material facts from the Executing Court, resulting in the impugned order being passed without due consideration of the actual layout and ownership of the basement portions. viii. Learned counsel submits the appellant-objector had no involvement in the underlying suit and was neither impleaded as a party nor made aware of the decree passed, therein, or the subsequent execution proceedings until the bailiff came to the suit property to attach the rear basement. He asserts that he possesses an independent right and title to the rear basement and, therefore, the impugned decree cannot be enforced against him. ix. In light of the same, the appellant-objector has raised objections under Order XXI Rule 97 CPC, challenging the validity of the judgment and decree dated 21.10.2011, as well as the revised decree dated

10.10.2012, passed in CS (OS) No. 1571/1998, before the Executing Court. Signature Not Verified Digitally Signed By:PRIYA Signing Date:26.03.2025 18:38:32 9 Signature Not Verified Digitally Signed By:PURUSHAINDRA KUMAR KAURAV x. He submits that the Executing Court, vide impugned order dated

08.07.2023, dismissed the objections of the appellant without any inquiry into his independent right and title over the rear basement. According to him, the Executing Court erroneously held that the sale deed in favour of the appellant was of no consequence and, this, according to him, resulted in grave injustice to the appellant-objector. xi. According to learned counsel, the case of the respondent no.1-decree holder in the suit for specific performance therein was that as per the agreement, he was to be handed over the maximum permissible covered area of the basement in the said building. However, the respondent no.1-decree holder contends that the respondents no.2 and no.3-judgment debtors had constructed a significantly truncated and abridged basement, thereby engaging in fraud. xii. Learned counsel emphasizes that the respondent no.1-decree holder, at no stage in the suit, disclosed or specified what constituted the maximum permissible covered area of the basement at the relevant time. Furthermore, it was not brought on record whether the basement was constructed in accordance with the sanctioned building plan. This, according to the appellant-objector, caused certain ambiguity as to the scope of the suit itself. xiii. Learned counsel for the appellant-objector further submits that on

12.07.2004, the respondent no.1-decree holder filed I.A. No. 5530/2004 under Order XXXIX Rule 2A CPC, alleging contempt and breach of the injunction order passed in the suit. In the said application, the respondent no.1-decree holder provided details of the Signature Not Verified Digitally Signed By:PRIYA Signing Date:26.03.2025 18:38:32 10 Signature Not Verified Digitally Signed By:PURUSHAINDRA KUMAR KAURAV purchasers and occupiers of the front basement, impleaded them as parties, and also sought the appointment of a Receiver for the said front basement alone. However, from the pleadings in the said application, it is evident that the respondent no.1-decree holder was always aware of the construction and occupation of the rear basement by the appellant-objector. Despite this knowledge, the respondent no.1-decree holder deliberately refrained from taking any steps to implead the appellant-objector in the subject suit. xiv. He further contends that the respondent no.1-decree holder, taking undue advantage of the ex-parte proceedings in the suit, deliberately misled the Court and obtained the judgment and decree dated

21.10.2011 for the entire basement of the said property, without specifying the area, measurements, or any site plan of basement(s), and thus a fraud has been played on the Court by the respondent no.1-decree holder. xv. He further contends that in distinction to the other parties, the ownership claim of the appellant-objector does not derive from the respondents no.2 and no.3-judgment debtors. Since the decree does not bind the appellant-objector, who claims ownership in his own right over a separate portion of the property, he rightfully filed objections under Order XXI Rule 97 CPC to establish his independent title to the Rear Basement and to expose the fraud committed by the plaintiff in obtaining the decree. However, the learned Executing Court, vide the impugned order, summarily dismissed the objections without conducting any inquiry into the independent ownership rights Signature Not Verified Digitally Signed By:PRIYA Signing Date:26.03.2025 18:38:32 11 Signature Not Verified Digitally Signed By:PURUSHAINDRA KUMAR KAURAV of the appellant over the rear basement. The impugned order is, thus, ex-facie erroneous and contrary to law and the facts on record. xvi. He concludes his submissions by stating that a perusal of the record of the Trial Court would indicate that there exist multiple unanswered questions and thus, fresh adjudication is required. He further places reliance on the decision of the Supreme Court in the case of Noorduddin v. K.L. Anand (Dr)1 to state that the scheme of Order XXI Rule 97 CPC empowers the Court to adjudicate upon the rights and interests of parties claiming an independent right qua the immovable property. He further relies on Babulal v. Raj Kumar2 to contend that in the event an obstruction is caused in the nature of resistance, before the removal of the resistance, an adjudication is required to be conducted under Order XXI Rule 98. Submissions on behalf of the Respondent no.1-decree holder: 15. Mr. Bhushan Kapur, learned counsel appearing on behalf of the respondent no.1-decree holder, vehemently rejecting the submissions advanced on behalf of the appellant-objector, has advanced the following broad submissions:- i. Learned counsel contends that he was originally inducted as a tenant with respect to the Ground Floor of the suit property, then owned by respondents no.2 and no.3-judgment debtors, vide lease agreement dated agreement dated 12.10.1994.