Deleted from Suit, But Not from Decree: Bombay HC's Verdict on Pendente Lite Buyers

In a significant ruling for property decree holders, the Bombay High Court Bench at Aurangabad has clarified that removing a pendente lite purchaser from a suit under Order 1 Rule 10 CPC does not shield them from execution of the decree. Justice Ajit B. Kadethankar allowed a writ petition by the legal heirs of Kashinath Ramji Shinde, overturning a lower court's refusal to direct possession against Dr. Ashok B. Lohalekar, who bought part of the disputed property mid-litigation.

This decision, pronounced on April 20, 2026 , in Writ Petition No. 12195 of 2024 , underscores the enduring bite of the lis pendens doctrine under Section 52 of the Transfer of Property Act, 1882 .

Decades-Long Fight Over Aurangabad Plot

The saga began in 1976 when Kashinath Shinde bought a residential property in Samatanagar, Aurangabad (municipal no. 5-17-33/PART). Trouble brewed as Pradip Shinde and Kusumbai Shinde (original defendants, now respondents 1 and 2) illicitly entered their names in city survey records, secured construction nods from the Municipal Corporation, Aurangabad , and sold portions—including to respondent 7, Dr. Lohalekar—without court permission.

Shinde filed Regular Civil Suit No. 435 of 1987 (later renumbered), seeking declaration, possession, and mesne profits . Amid pendency, Lohalekar was added as defendant 11 but deleted under Order 1 Rule 10 after procedural tussles, including High Court interventions in 2005 and 2007 affirming simple deletion, not withdrawal.

The trial court dismissed the suit in 2009, but the District Court reversed it in 2013, granting Shinde's decree. Execution (Regular Darkhast No. 08/2013) followed, with other buyers settling, but Lohalekar resisted. The executing court rejected directions against him on August 19, 2024 , viewing deletion as suit withdrawal—prompting this writ.

Petitioner's Plea: Doctrine Over Deletion

Counsel Rameshwar Totla argued deletion was tactical to curb delays, not abandonment. Lohalekar, as pendente lite purchaser from judgment debtor no. 2, remains " any person bound by the decree " under Order 21 Rule 35 CPC , protected by Section 52 TPA and Section 146 CPC (proceedings against those claiming under judgment debtors). Cited Supreme Court precedents like Dhanna Singh v. Baljinder Kaur (sub-purchasers can't exceed vendor's rights), Raj Kumar v. Sardari Lal (decrees bind transferees pre/post-decree), and Ved Kumari v. MCD (executing courts can't balk at third-party resistance).

Respondent's Stand: Third Party Shield

Senior counsel Pravin Mandlik countered: Deletion at petitioner's behest made Lohalekar a stranger to suit, appeal, and decree. No judgment debtor status bars Order 21 Rule 35. Alleged suppression, collusion with settling buyers, and delay taint the application. No legal bar like Section 52 applies post-deletion.

Unraveling the Legal Knot: Deletion ≠ Withdrawal

Justice Kadethankar dismantled the executing court's error, noting it ignored 2007 High Court orders quashing prior "withdrawal" tags. Order 1 Rule 10 allows striking "improperly joined" parties for procedural fit, sans claim forfeiture—unlike Order 23 Rule 1 , mandating explicit abandonment.

Section 52 TPA froze transfers during suit pendency (from plaint to decree satisfaction), binding Lohalekar to his vendor's fate. Order 21 Rule 35 and Section 146 CPC extend execution to claimants "under" judgment debtors. Deletion doesn't estop law's application: " There can be no estoppel against the Law ."

Precedents fortified this: Raj Kumar affirmed decrees hit transferees indiscriminately; Ved Kumari slammed executing courts dismissing over "third-party" possession, urging Order 21 Rules 97-101 for resistance.

As echoed in early reports, the court held: "A purchaser pendente lite... falls within the definition of 'any person bound by Decree for possession' within the meaning of Order 21 Rule 35."

Key Observations

"Unlike Order 23 Rule (1)... a deletion of a Defendant... does not perpetually abandon/forfeit the plaintiff's claim against the deleted Defendant."

"The property cannot be transferred... so as to affect the rights of any other party thereto under any decree... except under the authority of the Court." (Quoting Section 52 TPA )

"In no case, deletion of a defendant U/O 1 Rule 10... shall come in the way of applicability of Order 21 Rule 35 r/w section 146... while right of such defendant is affected by Section 52 of the [TPA]."

"A Decree passed against the Defendant is available for execution against the transferee... whether such transfer... [took] place after the passing of Decree or before." (From Raj Kumar v. Sardari Lal )

Victory for the Vigilant: Execution Revived

The writ succeeded: Impugned order quashed; Exh. 145-D allowed. The executing court must proceed per law, concluding within six months. Parties' counsel earned praise for assistance.

This bolsters decree holders against mid-suit flippers, ensuring lis pendens endures deletions. Future executing courts can't dodge via technicalities, curbing endless obstructions—vital in protracted property rows.