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2025 Supreme(Ker) 2720
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SATHISH NINAN, P. KRISHNA KUMAR, JJ.
Dilip Shankar Gang Jain, Represented By Its Power Of Attorney Holder Dhirajkumar Phootermal Jain – Petitioner
Versus
Rehmath A.R. and Anr. – Respondents
Ex. F.A. No.13 of 2025
Decided On : 17-09-2025
For the Petitioner: Sri. K.S. Bharathan, Sri. Alphin Antony, Sri. Aadithyan S. Mannali, Jishnu P.P., Smt. Radhikakrishna.
For the Respondents: Smt. Ummul Fida, Sri. C. Ijlal, Shri. Anandu R., Shri. Majid Muhammed K., Smt. P. Parvathy.
The doctrine of lis pendens applies; a prior sale prevails over a subsequent sale even if the latter is confirmed, given that appeals are treated as continuations of original proceedings.
Headnote:(A) Code of Civil Procedure, 1908 - Sections 65, 52 - Execution proceedings - Dispute regarding title over property following conflicting sales - Appellants contend prior claim void, and title secured under subsequent sale - Respondents maintain prior sale prevails, confirmed post-appeal - Court held principles of lis pendens apply; title vested with prior sale as it was confirmed, nullifying any competing claims. (Paras 12, 20, 24, 27)
(B) Sale Confirmation - Legal implications of sale confirmation under CPC affect title backdating to original sale date - Prior title prevails over subsequent transfers due to appeal proceedings being a continuation of original suits. (Paras 19, 23)
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
Question 1?
What is the principle applicable to title vesting between conflicting sales when one sale is confirmed after the other?
Question 2?
What is the effect of lis pendens and appeal continuation on the priority of a prior sale over a subsequent sale?
Question 3?
What are the legal consequences of Section 65 CPC regarding backdating of title upon sale confirmation in execution proceedings?
| Table of Content |
|---|
| 1. facts regarding the initial decrees and subsequent execution sales. (Para 2 , 3 , 4 , 5 , 6) |
| 2. arguments from both parties regarding the validity of their respective sales. (Para 10 , 11 , 15 , 16 , 17) |
| 3. court's analysis of title vesting and appeal proceedings. (Para 12 , 18 , 19 , 21 , 22) |
| 4. establishing the ratio of law regarding title and executions. (Para 23) |
| 5. conclusion regarding the dismissal of appeal. (Para 25 , 27) |
JUDGMENT :
Sathish Ninan, J.
Application filed under Order XXI Rule 97 of the Code of Civil Procedure (CPC), was dismissed by the execution court. The applicant is in appeal. The parties are being referred to as per their status in the appeal.
2. On 15.03.2016, the appellant had obtained a money decree against the second respondent, for an amount of ₹ 50,94,664/- with interest and costs, in OS 932/2015 of the City Civil Court, Bombay.
3. On 17.06.2016, the first respondent obtained a money decree against the second respondent, for an amount of ₹ 3,10,96,011/- with interest, in OS 14/2016 of the Subordinate Judge’s Court, Karunagappilly.
4. The respective decrees were transferred for execution to the Additional Sub Court-II, Thrissur.
5. On 24.09.2020, the application schedule property (hereinafter referred to as “the property”) was sold in execution in favour of the first respondent, in EP 26/2017, in execution of his decree in OS 14/2016. At the instance of a third party, as per order dated 06.01.2021 in EA 678/2020 in EP 26/17, the sale held on 24.09.2020 was set aside.
6. On 15.03.2021, the property was sold in favour of the appellant, in execution of his decree, in EP 167/17 in OS 932/2015. The sale was confirmed by the execution court on 30.07.2021.
7. In between, on 23.03.2021, the first respondent had filed FAO 27/2021 before this Court, challenging the order setting aside his sale. On 30.03.2021 this court stayed all further proceedings in execution in EP 26/2017.
8. On 26.08.2022, the first respondent preferred WP(c) No.27800/2022 before this Court for a direction not to effect mutation in favour of the appellant pursuant to the sale in his favour. Therein, the applicant was the 5th respondent.
9. On 07.12.2022, FAO 27/2021 was allowed by this Court, thus upholding the sale in favour of the first respondent. Thereafter the execution court, after dismissing a claim petition filed by a third party, on 04.07.2024 confirmed the sale held in favour of the first respondent and ordered delivery. It is at that stage that the present application has been filed by the appellant under Order XXI rule 97 of the CPC.
10. The contention of the applicant is that, on 15.03.2021 when the property was sold in his favour, the prior sale in favour of the first respondent stood set aside. There was no subsisting sale. His sale was confirmed. Thus, he had obtained valid title over the property. The subsequent confirmation of the prior sale in favour of the first respondent, is of no avail.
11. The first respondent contended that his sale being prior in point of time, has precedence over the subsequent sale in favour of the appellant.
12. The execution court held that in the light of Section 65 CPC, upon confirmation of the sale in favour of the first respondent, title over the property is deemed to have vested with him as on the date of sale, and accordingly dismissed the application.
13. We have heard the learned counsel on either side.
14. The point that arises for determination is: -
“Is the sale in favour of the appellant, which was held when the prior sale in favour of the first respondent stood set aside, saved, even though the prior sale was later upheld in appeal?”
15. The learned counsel for the appellant argued that, on 15.03.2021 when the property was sold in favour of the appellant, the prior sale in favour of the first respondent stood set aside. As on 15.03.2021 there was no subsisting challenge against the order setting aside the sale of the first respondent. The sale in favour of the applicant was conf
