Summary
The appellant, who bought the property from a purchaser of the original owner (a stranger to the suit), objected under Order XXI Rules 97 and 101 CPC to execution of an ex parte ejectment decree obtained by the tenant against his partners. The High Court closed the enquiry treating him as a transferee pendente lite barred by Rule 102. The Supreme Court held that Rule 102 applies only to a person who traces title from the judgment-debtor by a transfer after institution of the suit; a purchaser from a third party may object even if the purchase was pendente lite, and the enquiry was ordered to continue.
Issues
- Whether the bar in Order XXI Rule 102 CPC applies to an objector who purchased the property during the pendency of the suit but from a person other than the judgment-debtor.
- Whether the decree-holder's application to discontinue the Rules 97 and 101 enquiry, filed ten years after the objection and six years after issues were framed, could be entertained.
- What are the ingredients that must be satisfied before Rule 102 of Order XXI can be invoked.
Provisions considered
- Order XXI Rule 102, Code of Civil Procedure, 1908The rule embodies finality of litigation and lis pendens, protecting decree-holders against judgment-debtors and their transferees. Its ingredients are: a decree for possession of immovable property; resistance or obstruction to its execution; by a person to whom the judgment-debtor transferred the property; after institution of the suit in which the decree was passed. Only then are Rules 98 and 100 denied to the obstructor. It does not reach a person who does not trace title from the judgment-debtor, even if he acquired the property pendente lite. (¶¶ 8, 9, 11, 12, 13, 15)
- Order XXI Rules 97 and 101, Code of Civil Procedure, 1908The appellant, as owner claiming through a third-party vendor, was entitled to object to execution and to have all questions of right, title and interest adjudicated by the Executing Court in that enquiry rather than a separate suit; the Executing Court was bound to decide the objection. The Executing Court was directed to conclude the enquiry on merits. (¶¶ 6, 8, 13, 14, 15, 16, 17)
- Order XXI Rules 98 and 100, Code of Civil Procedure, 1908These rules provide for orders after adjudication under Rule 101. A transferee pendente lite of the judgment-debtor cannot claim their benefit, but an objector who received the property from someone other than the judgment-debtor can seek adjudication under them. (¶¶ 8, 11, 13, 15)
- Section 52, Transfer of Property Act, 1882Rule 102 of Order XXI recognises the doctrine of lis pendens embodied in Section 52; read together, the scheme protects a decree-holder for possession against alienations by the judgment-debtor during the suit. Lis pendens is constructive notice to such a purchaser that he is bound by the decree. (¶¶ 9, 12)
Held
- Order XXI Rule 102 CPC gives effect to the principle that litigation must end and to the doctrine of lis pendens in Section 52 of the Transfer of Property Act: a transferee from a judgment-debtor is presumed to know of the pending proceedings and cannot resist or obstruct execution of a decree for possession, nor claim the benefit of Rules 98 and 100, whether or not he had notice. (¶¶ 9, 12)
- Four conditions must be satisfied before Rule 102 applies: there is a decree for possession of immovable property; there is resistance or obstruction to its execution; the resistance is by a person to whom the judgment-debtor transferred the property; and that transfer occurred after institution of the suit in which the decree was passed. The interests of decree-holders, though important, are not protected blanketly beyond these ingredients. (¶ 11)
- Rule 102 applies only to a person who traces his title to the judgment-debtor. An objector who received the property from someone other than the judgment-debtor is not hit by the bar and is competent to invoke Rules 97 to 101, even if his acquisition was during the pendency of the suit in which the decree was passed. (¶¶ 13, 15)
- The appellant, who purchased in 2007 from a company that had bought the entire property from the original owner in 1988 and was never a party to the decree-holder's suit against his partners, does not trace title from the judgment-debtors and is not a transferee pendente lite of the judgment-debtor; Rule 102 did not bar his objection, and as owner he was entitled to ensure that no collusive decree was executed against the property. (¶¶ 14, 15)
- An application to discontinue a Rules 97 and 101 enquiry, moved ten years after the objection disclosed all material facts including the sale and surrender deeds, and six years after the decree-holder participated without protest in framing of issues, was belated and mala fide; the plea that an admission in cross-examination furnished a fresh cause was untenable, and the High Court seriously erred in closing the enquiry on it. (¶ 14)
Result
Appeal allowed; High Court order dated 25.07.2022 in WP No. 86 of 2022 set aside; Executing Court directed to proceed with and conclude the enquiry under Order XXI Rules 97 and 101 CPC on its own merits, uninfluenced by the Court's observations; pending applications disposed of.