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2008(2) Supreme 710
Supreme Court of india
(From Patna High Court)
C.K. Thakker & Markandey Katju, JJ.
Usha Sinha — Petitioner
versus
Dina Ram & Ors. — Respondents
Appeal (civil) 1998 of 2008
Arising Out of Special Leave Petition (Civil) No. 15315 of 2006
Decided on : 14-03-2008
(1857) 1 DG & J 566 : 44 ER 847 – Relied upon.
(b)Code of Civil Procedure, 1908 – Order XXI, rule 102 – The expression ‘transferee from the judgment debtor’ has been interpreted to mean the ‘transferee from a transferee from the judgment-debtor. (Para 14)
AIR 2003 Mad 203 – Cited with approval.
(c)Code of Civil Procedure, 1908 – Order XXI, rule 102 – 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 – 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. (Paras 18, 19 and 21)
(1998) 3 SCC 723 – Relied upon.
(d)Code of Civil Procedure, 1908 – Order XXI, rule 102 – Appellant purchasing the property during the pendency of the suit wherein ex parte decree was passed against the vendors – In the situation the doctrine of lis pendens would apply to the transaction in question – High Court was right in setting aside the order of the Executing Court. (Para 23)
(e)Code of Civil Procedure, 1908 – Order XXI, rule 29 – Rule 29 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 – Instantly 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 – It was open to the appellant, if she succeeds in the suit and decree is passed in her favour, to take appropriate proceedings and apply for restitution – That, however, does not preclude the decree holder from executing the decree obtained by him and she cannot resist execution during the pendency of the suit instituted by her. (Para 24)
Facts of the case:
1.The respondent filed a suit being Title Suit No. 140 of 1999 on April 10, 1999 in the Court of Sub-Judge VI, Purnia.
2.During the pendency of the said suit, defendant No. 4 and defendant No.5 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.
3.On May 24, 2001, ex-parte decree was passed against the defendants in Title Suit No. 140 of 1991. 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 appellants filed Title Suit No. 226 of 2001 in the Court of Sub-Judge I, Purnia against respondents. It was 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.The application came to be rejected by the Court on August 16, 2003.
6.In view of rejection of the application, the appellant moved the Executing Court in which Execution Case No. 10 of 2002 was pending. 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.
7.Being aggrieved by the said order, the respondent approached the High Court by filing Revision Petition which was allowed.
Findings of the Court :
The case being covered by O. XXI, r. 102, the appellant cannot resist execution of the decree.
Result : Appeal dismissed.
The legal document emphasizes the principle that if a transferee receives protection that is unfair, inequitable, or undeserved during the pendency of a suit, it can hinder a decree holder's ability to realize the fruits of their decree. Specifically, the law presumes that a transferee from the judgment debtor is aware of ongoing litigation and the status of the property involved. As a result, such a transferee cannot resist or obstruct the execution of a decree for possession if the transfer occurs during the litigation, especially when the doctrine of lis pendens applies. This doctrine effectively puts a notice on the property, indicating that any transfer during the pendency of the suit is subject to the outcome of that litigation and cannot be used to gain an unfair advantage or obstruct the decree's execution.
Furthermore, the law clarifies that a purchaser during the pendency of litigation does not have an independent right to resist execution, and their claim is limited to proceedings initiated by the judgment debtor. The protection offered to a transferee pendente lite is limited because extending such protection to an unfair or undeserved transferee would undermine the enforcement of decrees and the authority of courts.
Additionally, the legal provisions specify that the rules governing resistance and obstruction to the execution of decrees do not apply to transferees who have obtained property during the litigation, provided they are claiming through the judgment debtor. Such transferees are deemed to be aware of the pending litigation, and their rights are subordinate to the decree holder’s rights once a decree has been passed.
In summary, the law aims to prevent unjustified resistance to decree enforcement by protecting the decree holder’s rights against transfers made during litigation, especially when the doctrine of lis pendens is invoked, and emphasizes that a transferee during the pendency of a suit cannot obstruct or resist the execution of a valid court decree.
judgment
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 Suit No. 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 appear. 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
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