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CASE NO.: Appeal (civil)  1998 of 2008

PETITIONER: USHA SINHA

RESPONDENT: DINA RAM & ORS

DATE OF JUDGMENT: 14/03/2008

BENCH: C.K. THAKKER & MARKANDEY KATJU

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  1998    OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 15315 OF 2006

C.K. THAKKER, J.

1.              Leave granted. 2.              The present appeal is filed by the  appellant herein obstructionist (’appellant’  for short) against the judgment and order dated  July 4, 2006 passed by the High Court of  judicature at Patna in Civil Revision No. 113  of 2004. By the said order, the High Court  allowed the Revision filed by respondent No. 1  herein decree-holder (’respondent’ for short)  and set aside the order passed by the Sub-Judge  VI, Purnia. 3.              Short facts of the case are that the  respondent filed a suit being Title Suit No.  140 of 1999 on April 10, 1999 against (1) Arun  Choudhary, (2) Poonam Choudhary, (3) Sukhdeo  Singh, (4) Shambhu Prasad, and (5) Binod Kumar  in the Court of Sub-Judge VI, Purnia. During  the pendency of the said suit, defendant No. 4- Shambhu Prasad and defendant No.5-Binod Kumar  sold their share in the property in respect of  which the suit was pending, to the appellant by  a registered sale deed dated February 15, 2000.  On May 24, 2001, ex-parte decree was passed  against the defendants in Title Suit No. 140 of  1991. In the judgment rendered by Sub-Judge VI,  Purnia, it was observed that though the  defendants were duly served with the summons  and there was publication of summons also in  daily newspaper, the defendants did not appear.  The case was fixed for ex-parte hearing vide an  order dated April 10, 2001. The plaintiff and  his witnesses were examined and on the basis of  the said evidence, the suit was decreed. It was  held that plaintiff had right and title over  the suit land and he was entitled for recovery  of possession of land shown in Schedule B. 4.         The appellant, Binay Kumar Sinha, Pawan  Kumar Choudhary and Ratandeo Prasad Choudhary  filed Title Suit No. 226 of 2001 in the Court

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of Sub-Judge I, Purnia against respondent-Dina  Ram and others. It was asserted in the plaint  that the appellant (Usha Sinha) had purchased  the property and was the absolute owner  thereof. It was further stated that the  respondent (plaintiff of Title Suit No. 140 of  1999) had wrongfully and illegally filed a suit  for recovery of possession of property. No  notice was served to the defendants, or to the  appellant (purchaser of property) and the  decree was illegal, inexecutable and null and  void. It was also fraudulent, collusive and was  obtained by suppressing true and real facts. It  was, therefore, prayed that the decree passed  in Title Suit No. 140 of 1999 be declared as  null and void, being fraudulent, collusive and  without jurisdiction holding that the plaintiff  of Title Suit No. 140 of 1999 had no right,  title or interest in the property.  5.              A written statement was filed by the  respondent contending that the suit was not  maintainable, there was no cause of action  against the defendant-respondent and the decree  passed in the Title Suit No. 140 of 1999 was  legal and valid. 6.              It may be stated that for execution of  decree passed in Title Suit No. 140 of 1999, a  petition, being Execution Case No. 10 of 2002  was filed by the respondent-plaintiff who was  the decree holder. The present appellant filed  an application for injunction under Order 39,  Rules 1 and 2, Order 21, Rule 29 read with  Section 151 of the Code of Civil Procedure,  1908 (hereinafter referred to as ’the Code)  against the respondent-decree holder, inter  alia, contending that the ex-parte decree  passed in Title Suit No. 140 of 1999 was not  legal and valid and could not be executed  against her. It was further stated that a  substantive suit was filed by the appellant  being Title Suit No. 226 of 2001 and till that  suit is finally decided, execution should be  stayed and the decree-holder should be  restrained from interfering with the possession  of the appellant (plaintiff of Title Suit No.  226 of 2001). The respondent contested the  application contending that no such application  could lie under Order XXI, Rule 29 of the Code.   The application came to be rejected by the  Court on August 16, 2003. In view of rejection  of the application, the appellant moved the  Executing Court in which Execution Case No. 10  of 2002 was pending.  The application was  registered as Misc. Case No. 13 of 2003.  In  the application, it was stated by the appellant  that she had purchased the property by a  registered sale deed dated February 15, 2000;  that she had also filed Title Suit No. 226 of  2001 for setting aside ex-parte decree in Title  Suit No. 140 of 1999 which was pending; if  during the pendency of the substantive suit  filed by her, ex-parte decree is executed,  irreparable loss and injury would be caused to  her. The Executing Court, vide an order dated  November 20, 2003, allowed the application and

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stayed further proceedings in Execution Case  No. 10 of 2002 till the disposal of Misc. Case  No. 13 of 2003. Being aggrieved by the said  order, the respondent approached the High Court  by filing Revision Petition. The High Court  allowed the Revision and set aside the order of  the Executing Court which has been challenged  by the appellant by invoking Article 136 of the  Constitution. 7.              We have heard learned counsel for the  parties. 8.              The learned counsel for the appellant  contended that the High Court was wholly in  error in allowing the revision filed by the  respondent and in setting aside the order  passed by the Executing Court granting stay of  proceedings in Execution Case. It was submitted  that the Executing Court was right in relying  on the circumstance that when a substantive  suit is filed by the appellant to set aside ex- parte decree passed in favour of the respondent  in Title Suit No. 140 of 1999, during the  pendency of such suit, execution proceedings  ought to be stayed. The Executing Court passed  an order in the light of the fact that a suit  filed by the appellant was pending final  disposal which was a relevant consideration and  the said order should not have been interfered  with by the High Court. It was also submitted  that the High Court was wrong in invoking Rule  102 of Order XXI of the Code and in holding  that the appellant had no right to seek  protection.  The counsel also relied upon Rule  29 of Order XXI of the Code which deals with  the situation where a substantive suit is filed  by the judgment-debtor against the decree- holder and execution proceedings are pending  before a Court. Till the suit is finally  decided, execution proceedings should not be  allowed to continue further resulting in  virtual dismissal of the suit. It was,  therefore, submitted that the order passed by  the High Court deserves to be set aside by  restoring the order passed by the Executing  Court. 9.              The learned counsel for the  respondent, on the other hand, supported the  order passed by the High Court. It was  submitted that the Executing Court was wholly  wrong in entertaining application filed by the  appellant particularly after rejection of  similar application under Order XXI, Rule 29 of  the Code and by granting relief of injunction  till the disposal of Title Suit No. 226 of 2001  filed by her. It was submitted that admittedly  Title Suit No. 140 of 1999 was filed by the  respondent on April 10, 1999 and so called  registered sale deed was entered into between  defendant Nos. 4 and 5 on one hand and the  appellant on the other hand on February 15,  2000 i.e. during the pendency of the suit. The  doctrine of lis pendens, hence, applies to such  sale. Rule 102 of Order XXI of the Code  immediately gets attracted to such sale. The  said provision expressly enacts that nothing in

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Rules 98 and 100 of Order XXI 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. It  was, therefore, submitted that the appeal  deserves to be dismissed. 10.             Before we consider the legality or  otherwise of the decision impugned in the  present appeal, it may be appropriate if we  note the relevant provisions of law. Rules 97  to 106 of Order XXI of the Code deal with  "Resistance or obstruction to delivery of  possession to decree holder or purchaser". Rule  97 enables the decree holder or auction  purchaser to complain to Executing Court if  he/she is resisted or obstructed in obtaining  possession of such property by ’any person’.  The Court on receipt of such application will  proceed to adjudicate it. Rule 101 requires the  Court to make full fledged inquiry and  determine all questions relating to right,  title and interest in the property arising  between the parties to the proceeding or their  representatives. The Court will then pass an  order upon such adjudication (Rule 98). Rule 99  permits any person other than the judgment  debtor who is dispossessed by the decree holder  or auction purchaser to make an application to  Executing Court complaining such dispossession.  The Court, on receipt of such application, will  proceed to adjudicate it (Rule 100). Rule 103  declares that an order made under Rule 98 or  Rule 100 shall have the same force and be  subject to the same conditions as to appeal or  otherwise as if it were a decree. 11.             Rule 102 clarifies that Rules 98 and  100 of Order XXI of the Code do not apply to  transferee pendente lite. That rule is relevant  and material and may be quoted in extenso; 102. Rules not applicable to  transferee pendente lite Nothing in rules 98 and 100 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 the  dispossession of any such person.

12.             Bare reading of the rule makes it  clear that it is based on justice, equity and  good conscience. A transferee from a judgment  debtor is presumed to be aware of the  proceedings before a Court of law.  He should  be careful before he purchases the property  which is the subject matter of litigation.  It  recognizes the doctrine of lis pendens  recognized by Section 52 of the Transfer of  Property Act, 1882?. Rule 102 of Order XXI of  the Code thus takes into account the ground  reality and refuses to extend helping hand to

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purchasers of property in respect of which  litigation is pending. If unfair, inequitable  or undeserved protection is afforded to a  transferee pendente lite, a decree holder will  never be able to realize the fruits of his  decree.  Every time the decree holder seeks a  direction from a Court to execute the decree,  the judgment debtor or his transferee will  transfer the property and the new transferee  will offer resistance or cause obstruction. To  avoid such a situation, the rule has been  enacted. 13.             Before one and half century, in  Bellamy v. Sabine, (1857) 1 DG & J 566 : 44 ER  847, Lord Cranwoth, L.C. proclaimed that where  a litigation is pending between a plaintiff and  a defendant as to the right to a particular  estate, the necessities of mankind require that  the decision of the Court in the suit shall be  binding not only on the litigating parties, but  also on those who derive title under them by  alienations made pending the suit, whether such  alienees had or had not notice of the pending  proceedings.  If this were not so, there could  be no certainty that the litigation would ever  come to an end. 14.             Keeping in view the avowed object, the  expression ’transferee from the judgment  debtor’ has been interpreted to mean the  ’transferee from a transferee from the  judgment-debtor [vide Vijayalakshmi Leather  Industries (P) Ltd. Vs. K. Narayanan, Lalitha,  AIR 2003 Mad 203]. 15.             In Vijayalakshmi Leather Industries,  it was urged that the provisions of Rules 98  and 100 of Order XXI of the Code had limited  application to the transferee of the judgment- debtor and could not extend to ’a chain of  transactions’ where the transferee of the  judgment-debtor had transferred his interest. 16.             Referring to statutory provisions and  case law, the Court negatived the contention,  stating\027         If such contention of the learned  senior counsel for the appellant is to  be accepted, then we are closing our  eyes regarding the intention of the  statute. It is obvious while  interpreting the provisions of the  statute, the court must give due  weight to the intention of the statute  in order to give effect to the  provisions. If any narrow  interpretation is given and thereby  the purpose of the statute is being  defeated, the courts must be careful  to avoid such interpretations. If we  look at Section 52 of the Transfer of  Property Act and Rule 102 of Order 21  C.P.C, it is very clear that the  intention of the Parliament with which  the statute had been enacted is that  the rights of one of the parties to  the proceeding pending before the  court cannot be prejudiced or taken

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away or adversely affected by the  action of the other party to the same  proceeding. In the absence of such  restriction one party to the  proceeding, just to prejudice the  other party, may dispose of the  properties which is the subject matter  of the litigation or put any third  party in possession and keep away from  the court. By such actions of the  party to the litigation the other  party will be put to more hardship and  only to avoid such prejudicial acts by  a party to the litigation these  provisions are in existence. When in  spite of such statutory restrictions,  for the transfer of the properties,  which are the subject matter of  litigation by a party to the  proceeding, the courts are duty bound  to give effect to the provisions of  the statute. 17.             The above observations, in our  opinion, lay down correct proposition of law. 18.             It is thus settled law that a  purchaser of suit property during the pendency  of litigation has no right to resist or  obstruct execution of decree passed by a  competent Court. The doctrine of ’lis pendens’  prohibits a party from dealing with the  property which is the subject matter of suit.  ’Lis pendens’ itself is treated as constructive  notice to a purchaser that he is bound by a  decree to be entered in the pending suit. Rule  102, therefore, clarifies that there should not  be resistance or obstruction by a transferee  pendente lite. It declares that if the  resistance is caused or obstruction is offered  by a transferee pendente lite of the judgment  debtor, he cannot seek benefit of Rule 98 or  100 of Order XXI. 19.             In Silverline Forum Pvt. Ltd. v. Rajiv  Trust, (1998) 3 SCC 723, this Court held that  where the resistance is caused or obstruction  is offered by a transferee pendente lite, the  scope of adjudication is confined to a question  whether he was a transferee during the pendency  of a suit in which the decree was passed.  Once  the finding is in the affirmative, the  Executing Court must hold that he had no right  to resist or obstruct and such person cannot  seek protection from the Executing Court. 20.             The Court stated; "It is true that Rule 99 of Order 21  is not available to any person until  he is dispossessed of immovable  property by the decree-holder. Rule  101 stipulates that all questions  "arising between the parties to a  proceeding on an application under  rule 97 or rule 99" shall be  determined by the executing court, if  such questions are "relevant to the  adjudication of the application". A  third party to the decree who offers

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resistance would thus fall within the  ambit of Rule 101 if an adjudication  is warranted as a consequence of the  resistance or obstruction made by him  to the execution of the decree. No  doubt if the resistance was made by a  transferee pendente lite of the  judgment debtor, the scope of the  adjudication would be shrunk to the  limited question whether he is such  transferee and on a finding in the  affirmative regarding that point the  execution court has to hold that he  has no right to resist in view of the  clear language contained in Rule 102.  Exclusion of such a transferee from  raising further contentions is based  on the salutary principle adumbrated  in Section 52 of the Transfer of  Property Act."  (emphasis supplied) [See also Sarvinder Singh v. Dalip  Singh, (1996) 5 SCC 539] 21.             We are in respectful agreement with  the proposition of law laid down by this Court  in Silverline Forum. In our opinion, the  doctrine is based on the principle that the  person purchasing property from the judgment  debtor during the pendency of the suit has no  independent right to property to resist,  obstruct or object execution of a decree.  Resistance at the instance of transferee of a  judgment debtor during the pendency of the  proceedings cannot be said to be resistance or  obstruction by a person in his own right and,  therefore, is not entitled to get his claim  adjudicated. 22.             For invoking Rule 102, it is enough  for the decree holder to show that the person  resisting the possession or offering  obstruction is claiming his title to the  property after the institution of the suit in  which decree was passed and sought to be  executed against the judgment debtor.  If the  said condition is fulfilled, the case falls  within the mischief of Rule 102 and such  applicant cannot place reliance either on Rule  98 or Rule 100 of Order XXI. 23.             So far as the present case is  concerned, the facts are no more in dispute. As  already noted earlier, Title Suit No. 140 of  1999 was instituted by the respondent-plaintiff  on April 10, 1999. Thus, the litigation was  pending in respect of the property and the  matter was sub-judice. The appellant thereafter  purchased the property from original defendant  Nos. 4 and 5 by a registered sale deed on  February 15, 2000 i.e. during the pendency of  the suit. It is also not in dispute that ex- parte decree came to be passed against the  defendants on May 24, 2001. In the situation,  in our considered opinion, the doctrine of lis  pendens would apply to the transaction in  question, and the High Court was wholly right  in holding that the case was covered by Rule  102 of Order XXI of the Code. The appellant

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could not seek protection of pendency of suit  instituted by her. The Executing Court was not  justified in granting stay of execution  proceedings. The High Court was, hence, right  in setting aside the order of the Executing  Court. 24.             Rule 29 of Order XXI of the Code deals  with cases wherein a suit has been instituted  by the judgment-debtor against the decree- holder and has no relevance to cases of lis  pendens wherein transfer of property has been  effected by the judgment debtor to a third  party during the pendency of proceedings. The  High Court, in our opinion, rightly held that  the appellant could not be said to be a  ’stranger’ to the suit inasmuch as she was  claiming right, title and interest through  defendant Nos. 4 and 5 against whom the suit  was pending.  She must, therefore, be presumed  to be aware of the litigation which was before  a competent Court in the form of Title Suit No.  140 of 1999 instituted by the present  respondent against the predecessor of the  appellant. As held in Bellamy, the fact that  the purchaser of the property during the  pendency of the proceedings had no knowledge  about the suit, appeal or other proceeding is  wholly immaterial and he/she cannot resist  execution of decree on that ground. As observed  in Silverline Forum, a limited inquiry in such  cases is whether the transferee is claiming his  right through the judgment-debtor. In our  judgment, the High Court was also right in  observing that if the appellant succeeds in the  suit and decree is passed in her favour, she  can take appropriate proceedings in accordance  with law and apply for restitution.  That,  however, does not preclude the decree holder  from executing the decree obtained by him.   Since the appellant is a purchaser pendente  lite and as she has no right to offer  resistance or cause obstruction and as her  rights have not been crystallized in a decree,  Rule 102 of Order 21 of the Code comes into  operation.  Hence, she cannot resist execution  during the pendency of the suit instituted by  her. The order passed by the High Court,  therefore, cannot be said to be illegal,  unlawful or otherwise contrary to law. 25.             For the aforesaid reasons, the appeal  deserves to be dismissed and is accordingly  dismissed. On the facts and in the  circumstances of the case, however, there shall  be no order as to costs.