IMPORTANT POINT
A pendente lite transferee cannot resist the execution of a decree for possession of immovable property, as any transfer made during the pendency of a suit is void under Section 52 of the Transfer of Property Act and Order XXI Rule 102 C.P.C.

JUDGMENT :

AJIT KUMAR, J.

1. Supplementary affidavit filed today is taken on record.

2. Heard Sri Manas Bhargava, learned counsel for the petitioner and Sri Manish Tandon, learned counsel for the contesting respondents.

3. Petitioner before this court claims to be in possession of the property in question by virtue of transfer of possession given to him by erstwhile tenant and is aggrieved by the order passed by the executing court rejecting his application being Paper No. -4-C filed under Order XXI Rule 97 C.P.C.

4. Petitioner does dispute the title of decree holder in respect of the property in question but submits that manner in which his application is rejected is against the principle contained in the provisions of Order XXI Rule 97, 98, 99 and 100 C.P.C.

5. It is further contended by learned counsel for the petitioner that he has instituted a suit for permanent prohibitory injunction against the decree holder being O.S. No. -1269 of 2023 in which he is enjoying temporary injunction order against decree holder and, therefore, so long as interim order is continuing, petitioner cannot be evicted by the executing court in satisfaction of the decree.

Learned counsel for the petitioner has placed reliance upon the judgment of a coordinate Bench of this Court in the case of Jahid Khan and another v. Suresh Chand Jain and others, 2013 (6) ADJ 547 and in the case of Salik Ram Singh @ Salik Ram v. Additional District Judge, Court No. 3, Gonda and others, 2022 (3) ADJ 380.

6. Per contra, Sri Manish Tandon, learned counsel for the respondent-decree holder submits that against the order of temporary injunction passed in the suit, the decree holder had preferred misc. Civil Appeal No. -117 of 2023 which has now been finally disposed of on 15th May, 2024 rejecting 6-C application and setting aside the order dated 4th October, 2023 passed by the trial court. Thus, according to him, there is no more injunction operating in favour of the petitioner.

7. It is also submitted by learned counsel for the respondent that petitioner is a rank trespasser and has stepped into the shoes of tenant after the decree of eviction was passed. So, any transfer of possession even by executing an unregistered document is of no value and would stand hit by Section 52 of the Transfer of Property Act. It is contended that if any amount has been paid by the petitioner to the erstwhile tenant of the answering respondent – decree holder, petitioner has a right to recover the same by instituting an appropriate suit but he cannot resist the recovery of possession of the premises as a lawful transferee of the property. He submits that if such unscrupulous elements are permitted to bank with the trespass activity, then there will be no end of litigation and it will become very easy to frustrate a lawful decree repeatedly.

8. In support of his argument learned counsel for the respondent has relied upon the judgment of a coordinate Bench in the case of Sudhir Kumar and others v. Smt. Omwati and others, 2018 (6) AWC 6113.

9. Having heard learned counsel for the respective parties and their arguments raised across the bar and having noticed the pleadings raised before this Court as well as before the executing court, the admitted position comes out to be that answering respondent is the title holder of the suit property. It is also an admitted position that petitioner was nowhere in scene when the judgment and decree was passed by the trial court. As per his own pleadings he is a transferee of the property by a tenant who was ousted by the decree of eviction. There being no agreement between the landlord and the petitioner and the earlier sitting tenant faced with the decree of eviction, in my considered view, there could not have been any lawful transfer of premises in question by such tenant to a third party and if third party paid any amount of consideration to enter into possession by writing a note on a piece of paper, which in the present case is admittedly an unregistered do