A transferee pendente lite has no right to resist the decree under Order XXI, Rules 97 and 101 of the CPC.

JUDGMENT

1. Heard Mr. Lotlikar, learned Senior Counsel for the petitioners and Mr. Desai, learned Counsel for the respondent no. 6.

2. Rule. Rule made returnable forthwith. Mr. Shivan Desai, learned Counsel, waives service on behalf of the respondent no. 6. Heard finally by consent of parties.

3. The short question, arises for consideration, is, whether, the Executing Court was justified in continuing enquiry, in an Application, purporting to have been filed by the third party, under Order XXI, Rules 97 and 101 of the CPC, although, enquiry has revealed that third party-respondent no. 6 was pendente lite of the judgment debtor.

4. Briefly stated facts of the case are as under:

The petitioners instituted a suit in the Court of Civil Judge Senior Division at Panaji, being Special Civil Suit No. 97/1996/B, for dissolution of partnership; recovery of mesne profits and eviction of judgment debtor nos. 1 to 5(i), who were defendants in the said suit. It was the petitioner's case that the original plaintiff no. 1 was tenant of the suit premises, wherein the business of defendant no. 1 (partnership firm) was carried on. In terms of partnership deed, the tenancy rights of the said premises continued to be the personal property of the original plaintiffs. On account of disputes between the plaintiffs and other partners of the firm, the original plaintiffs, gave a notice of dissolution of the partnership firm to the defendant nos. 2 to 4 and sought discontinuation of the use of the suit premises and delivery of vacant possession to them alongwith other reliefs.

5. On 24.04.2008, the learned Adhoc Civil Judge Senior Division at Panaji, decreed the suit, whereby, the defendants/ judgment debtor were inter alia directed to vacate the suit premises and deliver its vacant possession to the plaintiffs. Since the possession of the suit premises was not handed over by the judgment debtor, despite the decree attaining finality, the original plaintiffs filed an Application for execution of the decree, which came to be registered as Execution Application No. 22/2008/B. Pending Execution, in February, 2009, an Application, purporting to be an Application under Order XXI, Rules 97 and 101 of CPC, came to be filed on behalf of respondent no. 6, as a third party. Respondent no. 6 claimed that by Deed of Sale dated 24.04.2007, he had purchased the suit property alongwith the house from its owner, M/s Rizwi Estate and Hotels Private Limited. He would further claim that M/s Keshav Malik Hardware Corporation (partnership firm-respondent no. 1) was tenant of the suit premises and it had surrendered its tenancy rights in his favour, by Deed of Surrender dated 05.07.2007 and handed over the vacant possession of the same to him. On this premise, respondent no. 6, submitted that the decree in question could not be executed against him, since, he has independent right, title and interest in the property.

6. The Application under Order XXI, Rules 97 and 101 of CPC was opposed by the decree holders, on the ground that the Deed of Surrender dated 05.07.2007, purportedly made by M/s Keshav Malik Hardware Corporation (Firm-Defendant No. 1), was during the pendency of the suit, instituted by the original plaintiffs against the firm and its partners, therefore, was governed by doctrine of lis pendens and objection under Order XXI, Rule 97 of the CPC, was not maintainable.

7. On 18.08.2011, an Application was moved by the respondent no. 6, by which, he prayed to the Executing Court that, the issues which arise for determination of the Court between the parties, be framed before proceeding with the Execution. The Application was opposed by the petitioners, that there was no scope for framing such issues or points for determination as the very Application made by respondent no. 6, under Order XXI. Rules 97 and 101 of CPC was not maintainable.

8. By order dated 05.09.2013, the Executing Court allowed the Application of respondent no. 6 and framed the following issues:

i. Whether the