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2008 Supreme(Ori) 585
IN THE HIGH COURT OF ORISSA
A.S. Naidu, J.
SANJUKTA SAHOO - APPELLANT
Versus
SAILABALA MISHRA AND OTHERS - RESPONDENT
Decided On : 02-12-2008
The principle of lis pendens applies to prevent the acquisition of title by a subsequent purchaser during the pendency of litigation.
Headnote:
Lis Pendens - Execution of Decree - Court Confirms Order for Possession - Subsequent Purchaser's Claim Dismissed
Fact of the Case:
The decree-holder sought possession of the suit property through execution proceedings. The executing Court issued an order for delivery of possession by breaking open the locks with police aid. A subsequent purchaser of the property challenged the order, claiming possession based on their purchase during the pendency of the litigation.
Finding of the Court:
The court found that the executing Court did not err in issuing the order for possession. It held that any alienation made during the pendency of litigation is hit by the principles of lis pendens, and the subsequent purchaser could not acquire title. The court dismissed the writ petition, upholding the executing Court's order.
Issues: Validity of order for possession in execution proceedings, claim of subsequent purchaser during pendency of litigation
Ratio Decidendi: The principle of lis pendens applies to prevent the acquisition of title by a subsequent purchaser during the pendency of litigation. Any alienation made during this period is not recognized, and the subsequent purchaser's remedy lies in filing a petition under Section 144 of the Civil Procedure Code after the decree-holder recovers possession or instituting a separate suit to enforce their rights.
Final Decision: The court dismissed the writ petition, upholding the executing Court's order for possession.
JUDGMENT :
A.S. Naidu, J. - The Order Dated 25th July, 2008 (Annexure-1) passed by the Learned Civil Judge (SD), Talcher in Execution Case No. 2 of 2002 is assailed in this Writ Petition.
2. Bereft of unnecessary details, the facts of the case are Title Suit No. 9 of 1979/2 of 1982 was flied by that Respondent No. 16 in the Court of the then Subordinate Judge, Talcher. The said suit was one for declaration of right, title and interest in respect of the suit property and for recovery of possession thereof. The suit was decreed. The said decree was assailed in Title Appeal No. 1 of 1995 before the District Judge, Dhenkanal. The Appellate Court confirmed the Judgment and decree of the Trial Court and dismissed the appeal. The confirming Judgment of the Appellate Court was assailed before this Court in Second Appeal No. 23 of 1989. The Second Appeal was also dismissed. Thus the Judgment and decree of the Trial Court were confirmed. Thereafter Execution Case No. 2 of 2002 was initiated. In course of execution of the decree, a petition was filed for issuance of a Writ by the executing Court for effecting delivery of possession of the suit property in favour of the decree-holder by evicting the Judgment-debtors/shop-keepers there-from.
3. The Amin Commissioner filed a report indicating that the shop-rooms which consisted the suit property having been locked and there being no direction to give delivery of possession by breaking open the locks, he could not effect delivery of possession to the decree-holder. On the basis of such report a petition was filed by the decree-holder to issue direction to the Amin Commissioner to break open the locks and deliver possession of the suit property by evicting the shop-keepers there-form and also for rendering necessary police help for the said purpose.
4. The executing Court, after hearing Learned Counsel for the parties, issued direction to the Amin Commissioner to effect delivery of possession of the suit property by breaking open the locks with the aid of police. The said Court also directed the Amin Commissioner to issue notice to the Judgment-debtor occupants of the shop-rooms giving them seven days' time and visit the spot thereafter. The decree-holder was also directed to take steps within three days. The Sub-Collector-cum-SDM was directed to be intimated to depute an Executive Magistrate to remain present at the time of execution of the Writ. The Superintendent of Police, Angul was also directed to be intimated to depute the OIC, Colliery P.S. to remain present at the spot. The said order is assailed by the Petitioner who claims to be a subsequent purchaser of the suit property/portion thereof.
5. According to the Learned Counsel for the Petitioner, the Petitioner had filed a petition u/s 47 read with Order 41, Rule 16 CPC and without disposing of that petition the executing Court should not have issued Writ for execution of the decree. He also submitted that during pendency of the lis the decree-holder had alienated the suit property/portion thereof in favour of the Petitioner and the latter is in possession thereof.
This submission is strongly repudiated by Opposite Party No. 16-decree holder who appears in person.
6. Fact remains, the Judgment and decree of the Trial Court declaring right, title and interest of the suit property as well as for recovery of possession from the Judgment-debtors have been confirmed at the second Appellate stage. This Court fails to understand as to how the Petitioner who claim's to be subsequent purchaser could take possession of any shop-room, more so when the execution case was pending. Law is well settled that any alienation made during pendency of a litigation is hit by the principles of lis pendens and the alienee acquires no title. Even otherwise, if the Petitioner has really purchased any part of the suit property, it is open to her to file a petition u/s 144 CPC after the decree-holder recovers his possession. It is also open to her to institute a separa
