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Report No. 157

4.5. Provisions contained in rules 97, 98, 99, 100, 101, 102, 103 and 104 of Order 21 of the Code which also recognise the principle of lis pendens, are reproduced below:-

"97. Resistance or obstruction to possession of immovable property.-(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction.

(2) Where any application is made under sub-rule (1), the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

98. Orders after adjudication.-(1) Upon the determination of the questions referred to in rule 101, the court shall, in accordance with such determination and subject to the provisions of sub-rule (2),

(a) make an order allowing the application and directing that the applicant be put into possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

(2) Where, upon such determination, the court is satisfied that the resistance or obstruction -was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.

99. Dispossession by decree-holder or purchaser.-(1) 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 the court complaining of such dispossession.

(2) Where any such application is made, the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

100. Order to be passed upon applicatior complaining of dispossession.-Upon the determination of the questions referred to in rule 101, the court shall, in accordance with such determination,-

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

101. Question to be determined.-All questions (including question relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the court dealing with the application and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

102. Rules not applicable to transferee pendent 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.

Explanation.-In this rule, 'transfer' includes a transfer by operation of law.

103. Orders to be treated as decrees.-Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.

104. Order under rule 101 or rule 103 to be subject to the result or pending suit.-Every order made under rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property."

4.6. A perusal of the scheme contained in the above rules would show that by virtue of rule 102 of Order 21, an exception to the operation of orders passed under rules 98 and 100 of Order 21 of C.P.C., is carved out where the resistor or the obstructor to the execution of the decree is the person to whom the property is transferred by the judgment-debtor during the pendency of the suit in which the decree was passed. This exception is primarily based on the principle that a transfer of possession of immoveable property during the pendency of the suit which involves any right to the property in question would be incapable in law of affecting the rights that arise in relation to such property from a decree that may be passed in the suit.

The transfer referred to in this rule in not merely transfer of title to the property but also of its possession, whether accompanied by transfer of title or not (Kanagasabai v. Poornathammal, AIR 1957 Mad 458). On the question whether rule 102 applies or not to involuntary sales, there was difference of opinion of the High Courts. The Patna High Court held the view that it did not (Gunn Durga v. Krishna Rao, 24 Pat 695 AIR 1946 Pat 134, while the Calcutta High Court held that it did (Bepin v. Hem Chandra, AIR 1939 Cal 709).

This controversy now no longer subsists after the insertion of an Explanation under rule 102 of Order XXI by the C.P.C. (Amendment) Act, 1976, by which the word 'transfer' has now been defined as including a transfer by operation of law. The Calcutta High Court in Nagendranath San v. Ramkrishnarao Sau, AIR 1960 Cal 299, while relying on its earlier decision in Bepin's case, AIR 1939 Cal 709 supra, considered the precise effect of rule 102 of Order XXI as follows:-

"(21) The reasons which weighed with Edgley, J. in the case reported in ILR (1939) 2 Cal 63: AIR 1939 Cal 709, are hereinbelow quoted:

"The general provisions of the law with regard to the principle of lis pendens are contained in section 52 of the Transfer of Property Act. Having regard, however, to the terms of section 2(d) of the Transfer of Property Act, the provision of section 52 would not directly apply as regards the matter with which we are now dealing. At the same time, as regards transfers in the course of execution proceedings, the rule of lis pendens is expressly recognised in Order XXI, rule 102 of the Code of Civil Procedure. The precise effect of this rule must therefore be considered. In order to ascertain the precise meaning of this rule some reference is necessary to some of the preceding rules of Order XXI.

If there is resistance or obstruction to the execution of a decree for the possession of immoveable property, the decree-holder may complain under rule 97. Rule 98 of Order XXI provides that, when the resistance or obstruction was occasioned without any just cause, the decree-holder will be put into possession of the property. If however, there is any just cause for the resistance or obstruction of the nature mentioned in rule 99 of Order XXI, the decree-holder's application is rejected. But, having regard to the provisions of rule 102, the person in possession cannot be said to have a right to be in possession if he has received the property on transfer from the judgment-debtor, after the institution of the suit in which the decree was passed.

In such a case the decree-holder's application would be allowed under rule 98. The two succeeding rules 100 and 101, relate to applications which may be made by the person other than the judgment-debtor in possession of property which is the subject-matter of the execution proceedings. If any person in possession of the such property other than the judgment-debtor is dispossessed, he may complain under rule 100 of Order XXI.

If it is found that he was in possession on his own account, the court will order him to be restored to possession, unless in view of the provisions of rule 102, the judgment-debtor has transferred property to him after the institution of the suit in which a decree was passed. The terms of rule 102 are therefore such as to exclude from the benefit of rule 99 a transferee pendente litefrom the judgment-debtor, who has resisted or obstructed the execution of the decree, and from the benefit of rule 101 any such transferee who has been dispossessed of the transferred property."

It has been argued that the words "a person to whom the judgment-debtor has transferred the property" can only refer to a voluntary alienation on the part of a judgment-debtor and not to a transfer by a court sale or a sale under the Public Demands Recovery Act. Admittedly, the general doctrine of Lis pendens under section 52 of the Transfer of Property Act has been extended by judicial aecision to involuntary alienations and I see no reason why the same principle should not apply in the case of transfers which are covered by rule 102.

The ti ansfer of property belonging to the judgment-debtor, whether such transfer be voluntary or involuntary, nevertheless operates as a transfer by the judgment-debtor and in this view of the case, I think that the language of rule 102 is sufficiently wide to cover both kinds of alienations by a judgment-debtor".

4.7. The conjoint effect of Section 52 of the Transfer of Property Act and rule 102 of Order XXI, C.P.0 as observed in the case of J.P. Shan/car Singh v. Pachee Bee, 1985 (Vol. 52) Andhra Law Times (Notes on recent cases) 32, is as follows.

"A combined reading of section 52 of the Transfer of Property Act and Order 21, rule 102, C.P.C. postulates that a purchaser pendente litedoes not acquire any title to the property to the detriment of the rights of other party and if such a purchaser makes any obstruction or resistance to the execution of the decree so passed, an enquiry is not contemplated under Order 21, rule 99 or 100, C.P.C."

4.8. Further in the case of Shubhchandra Jain v. Amit Jain, 1989 (2) Delhi Lawyer 399, the High Court held that for attracting the provisions of Order 21, rule 102, it was enough for the decree holder to show that the applicants claim their title to the property on a date subsequent to the date of the institution of the suit in which the decree was ultimately passed by the appellate court in favour of the decree-holder.

4.9. On a glance through the aforecited decisions it is evident that having regard to the provisions of rule 102 of Order XXI, C.P.C., the person in possession of immoveable property cannot be said to have a right to be in possession if he has received the property on transfer from the judgment debtor, after the institution of the suit in which the decree was passed.

The effect of rule 102 is, therefore, such as to exclude from the benefit of rule 99, a transferee pendente lite, from the judgment-debtor who has resisted or obstructed the execution of the decree, and from the benefit of rule 100 any such transferee who has been dispossessed of the transferred property. It is settled law that the general doctrine of lis pendens under section 52 of the Transfer of Property Act has been extended to involuntary alienations and the same principles have been applied to the cases of transfer covered by rule 102.

4.10. The main objective behind the various provisions of the Code of Civil Procedure discussed herein above is to ensure that the decree-holder should not be deprived of the fruits of the decree. With this end in view, the Civil Procedure Code provisions have been enacted which are a distinct self-contained code having independent application de hors section 52 of the Transfer of Property Act. It would run counter to the basic object of the administration of justice if the decree passed by a court is allowed to be rendered nugatory during the execution proceedings.

Therefore we are of the view that the provisions of the Code of Civil Procedure contained in sections 64, 74 and Order XXI, rule 102 serve a definite purpose and they are, as such, very much required to be retained and that the proposed amendment in section 52 of the Transfer of Property Act should not in any way have the direct or implied effect of repealing the said provisions. If no saving clause is added for the purpose, the possibility of a controversy arising in this regard cannot be ruled out, particularly when the provisions of section 52, as already stated by us, also continue to have force until completion of the execution proceedings.

We are, therefore, of the view that by way of abundant caution and in order to eliminate any controversy, it would be necessary to incorporate expressly a provision to the effect that nothing in sections 64, 74 and rule 102 of Order XXI, C.P.C. shall be affected by virtue of the proposed incorporation of the requirement of registration of the notice of suit or proceeding in section 52 of the Transfer of Property Act.



Section 52 of the Transfer of Property Act, 1882 and its Amendment Back




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