Usha Sinha Vs. Dina Ram &
Ors  INSC 485 (14 March 2008)
C.K. Thakker & Markandey
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
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
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 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
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 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 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 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
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 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
16. Referring to statutory provisions and case law, the Court negatived the
contention, stating 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 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
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 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
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 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.
Pages: 1 2 3