A purchaser of property from judgment debtors during pendency of a title suit sought to stall execution of an ex-parte decree by invoking her own suit and Rule 29. The Court held lis pendens applied and Rule 102 barred resistance; it upheld the High Court's revision and dismissed the appeal.
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[2008] 4 S.C.R. 1192
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USHA SINHA
v.
DINA RAM & ORS.
(Civil Appeal No. 1998 of 2008)
MARCH 14, 2008
B
(C.K. THAKKER AND MARKANDEY KAT JU, JJ.)
Code of Civil Procedure, 1908; O.XXI Rule 29 r/w s. 151; rr. 96 - 102; O.XXXIX rr. 1 & 2:
C Execution of a decree - Appellant purchasing property Jn question from defendants against whom a title suit was pending - Granting of ex-parte decree by trial Court - Execution - Filing of title suit by appellant in respect of share in property purchased from defendants and filing of an D application for injunction against decree holder for staying the execution till final disposal of title suit - Rejected by trial Court · - Filing of application for staying the proceeding before Executing Court - Allowed by the Executing Court - Revision application allowed by High Court - Correctness of - Held: E R. 102 of O.XXI C. PC. is based on equity and good conscience - Transferee should be careful before purchasing of the property which is the subject matter of litigation - Transferee from judgment debtor presumed to be aware of the proceedings before a Court of Law- Purchaser of suit property F during pendency of litigation has no right to resist/obstruct execution of decree passed by a competent Court - If resistance caused or obstruction offered by the transferee, he cannot seek ben.efit of r. 98 or 100 of O.XXI, CPC - Resistance offered by transferee at the instance of judgment debtor cannot G be found as resistance offered by a person in his own right - Doctrine of Lis Pendens attracted to transaction in question - .Hence, High Court was right in allowing the Revision Application holding that the case is covered by r 102 of O.XXI C. PC - Transfer of Property Act, 1882 - Section 52.
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USHA SINHA v. DINA RAM & ORS.
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Doctrines:
Doctrine of 'Lis Pendens' - Applicability of
Words and Phrases:
'Transferee from the judgment debtor' - Meaning of in the context of r. 102 of O.XXI C. PC, 1908.
Respondent filed a title suit in respect of certain properties against defendant Nos. 1 to 5. During pendency of the suit, defendant Nos. 4 & 5 allegedly sold their share in the said properties to the appellants by a registered sale deed. Later, an ex-parte decree was passed in the said case against the defendants. Another title suit was filed by the appellant and others against the respondent and others on the ground that she was the absolute owner of the property as she had purchased the property and prayed that the decree passed in the earlier title suit in favold:r of respondent be declared null and void as the respondent has no right, title or interest in the property. In the meantime, respondent, the decree-holder, filed an execution petition for executing the decree passed in his favour. The appellant filed an application for injunction u/ 0.39 rr.1 & 2 praying for stay of the execution till the title suit filed by her was finally disposed of. The application was rejected by the trial Court. Aggrieved by the order of the trial Court, she filed an application before the Executing Court for staying the execution. The application was allowed by the Executing Court. The respondent approached the High Court by filing a Revision Petition, which was allowed by the High Court by setting aside the order of the Executing Court. Hence, the present appeal.
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 ~y the Executing Court granting stay of proceedings in Execution Case; that the Executing Court was right in relying on the
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A 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, during the pendency of such suit, execution proceedings ought to be stayed; that the Executing Court passed an order in the light of the fact B 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 and that the High Court was wrong in invoking r. 102 of Order XXI of the Code and in holding that the appellant c had no right to seek protection.
Respondent submitted that the Executing Court was wholly wrong in entertaining application filed by the appellant particularly after rejection of similar application under Order XXI, r. 29 of the Code and by granting relief D of injunction till the disposal of the Title Suit filed by her; that admittedly earlier Title Suit was filed by the respondent 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 during the pendency E of the suit: The doctrine of /is pendens, hence, applies to such sale; and that Rule 102 of Order XXI of the Code gets attracted to such sale.
Dismissing the appeal, the Court
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HELD: 1.1 Rule 102 of Order XXI CPC is based on
ju~tice, 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 G matter of litigation. It recognizes the doctrine of /is pendens recognized by s. 52 of the Transfer of Property Act, 1882. The said Rule 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
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USHA SINHA v. DINA RAM & ORS.
transferee pendente lite, a decree holder will never be able A 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 B has been enacted. 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'. (Paras - 12 & 14) [1202-C, D, A, 8, D, E]
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Vijaya/akshmi Leather Industries (P) Ltd. Vs. K. Narayanan, Lalitha, AIR 2003 Mad 203 - approved.
Bellamy v. Sabine, (1857) 1 DG & J 566 : 44 ER 847 - referred to.
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1.2 It is 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 '!is pendens' prohibits a party from dealing with the property which is the subject matter of E 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 F judgment debtor, he cannot seek benefit of Rule 98or100 of Order XXI of the Code. This Court is in respectful agreement with the proposition of law laid down by this Court in Silverline Forum. The doctrine is based on the principle that the person purchasing property from the G 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 H
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Silverline Forum Pvt. Ltd. VS. Rajiv Trust, (1998) 3 sec 723 and Sawinder Singh vs. Dalip Singh, (1996) 5 SCC 539 8 - relied on.
1.3 For invoking r. 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 c 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 r.102 and such applicant cannot place reliance either on Rule 98 or r. 100 of Order XXI of the Code. D (Para -22) [1206-C, D]
· 1.4 The doctrine of /is pendens would apply to the transaction in question, and the High Court was wholly right in holding that the case was covered by r. 102 of Order XXI of the Code. The appellant could not seek E 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. (Para - 23) [1206-F, G]
F 2.1 ·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 /is pendens wherein transfer of property has been effected by the judgment debtor to a third party during G the pendency of .proceedings. The High Court has 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 H to be aware of the litigation which was before a competent
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USHA SINHA v. DINA RAM & ORS. [C.K. THAKKER, J.]
Court in the form of Title Suit No. 140 of 1999 instituted by A the present respondent against the predecessor of the appellant. (Para - 24) [1206-H; 1207-A, 8, CJ
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2.2 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 B in a decree, r. 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. (Para - 24) C [1207-E, F]
Bellamy vs. Sabine, (1857) 1 DG & J 566 : 44 ER 847 and Silverline Forum Pvt. Ltd. vs.· Rajiv Trust, .(1998) 3 SCC 723 - referred to.
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1998 of 2008.
From the final Judgment and Order dated 04.07.2006 of the High Court of Judicature at Patna in Civil Revision No. 113 of 2004.
S.S. Sanyal, Dr. K.D. Prasad, D.K. Sinha,A.K. Sinha and Salish Vig for the Appellant.
S.S. Upadhyay, Santosh Mishra, Prabhas Chandra Yadav, Shiv Mangal Sharma and Sharmila Upadhyay for the Respondents.
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· The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. Leave granted.
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A order passed by the Sub-Judge VI, Purnia.
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USHA SINHA v. DINA RAM & ORS. [C.K. THAKKER, J.J
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A 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.
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1201
USHA SINHA v. DINA RAM & ORS. [C.K. THAKKER, J.]
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Code and by granting relief of injunction till the disposal of Title A )_ 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 B' of the suit. The doctrine of /is 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 c possession of immovable property by a person to whom the jµdgment-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.
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A 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;
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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 judgmentdebtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
E *Section 52 - Transfer of property pending suit relating thereto During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise F dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
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Explanation. For the purposes of this section, the pendency of a suit or G proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent , jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution H thereof by any law for the time being in force.
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USHA SINHA v. DINA RAM & ORS. [C.K. THAKKER, J.]
). extend helping hand to purchasers of property in respect of which A 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 B the property and the new transferee will offer resistance or cause obstruction. To avoid such a situation, the rule has been enacted.
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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
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A 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 B 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 c action of th_e 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 D 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, E the courts are duty bound to give effect to the provisions of the statute.
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F 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 '/is pendens' prohibits a party from dealing with the property which is the subject matter of suit. 'Lis pendens' itself is treated G as constructive notice to a purchaser that he is bou'nd 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 Hof the judgment debtor, he cannot seek benefit of Rule 98 or
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1205
USHA SINHA v. DINA RAM & ORS. [C.K. THAKKER, J.]
100 of Order XXI.
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"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 D 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 E 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 F 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 G Act." (emphasis supplied)
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[See also Sarvinder Singh v. Dalip Singh, (1996) 5 SCC 539]
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A 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 Btransfereeof a judgment debtor during the pendencyof 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.
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USHA SINHA v. DINA RAM & ORS. [C.K. THAKKER, J.]
wherein a suit has been instituted by the judgment-debtor against the decree--holder and has no relevance to cases of /is 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 Silver/ine Forum, a I. ~ited inquiry in such cases is whether the transferee is claiming 1 is 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.
S.K.S.
Appeal dismissed.
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2 issues framed by the court
Whether a transferee pendente lite from a judgment debtor can resist or obstruct execution of a decree under Rules 98 or 100 of Order XXI CPC.
Whether Rule 29 of Order XXI CPC justified stay of execution pending the appellant's suit to set aside the ex-parte decree.
Colour shows how this judgement treated each authority
Vijayalakshmi Leather Industries (P) Ltd. v. K. Narayanan, LalithaReferred¶14
Vijayalakshmi Leather Industries (P) Ltd. Vs. K. Narayanan, Lalitha, AIR 2003 Mad 203 · Who else cites this
Bellamy v. SabineReferred¶13
Bellamy v. Sabine, (1857) 1 DG & J 566 : 44 ER 847
Silverline Forum Pvt. Ltd. v. Rajiv TrustRelied on¶19
Silverline Forum Pvt. Ltd. VS. Rajiv Trust, (1998) 3 SCC 723 · Who else cites this
Sawinder Singh v. Dalip SinghRelied on¶20
Sawinder Singh vs. Dalip Singh, (1996) 5 SCC 539 · Who else cites this
5 provisions across 2 enactments
Usha Sinha
Dina Ram
Others
C.K. Thakker
Markandey Katju
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
