IMPORTANT POINTS
(1) Lis Pendens – Section 52 of T.P. Act has no application where transfer in favour of subsequent purchaser is not after filing of suit but before filing of suit for specific performance.
(2) Resistance to execution of decree – Possession of obstructionist cannot be disturbed except in accordance with law.
(3) Decree for specific performance merely recognizes claim for specific performance of contract, which is capable of being specifically enforced at instance of Decree Holder – It does not elevate status of a Decree Holder, subsisting prior to passing of such a decree, to that of owner of property in question.

JUDGMENT

Heard Mr. Nikhil Sakhardande, learned Senior Counsel for the Appellants in Second Appeal No.396 of 2022, Mr. Siddhesh Bhole, learned Counsel for the Appellant in Second Appeal (St) No.22336 of 2022, Mr. Rajanish Bhonsale, learned Counsel for the Respondent No.1 in both the Second Appeals and Mr. Shriram Kulkarni, learned Amicus Curiae.

I. Substantial Questions of Law raised in Second Appeals:

2. A learned Single Judge by Order dated 2nd May 2022 framed the following substantial questions of law in Second Appeal No.396 of 2022:-

“1. Whether in the facts and circumstances of the case, the decree for Specific Performance passed in Regular Civil Suit No.910 of 1986 is executable, when the Decree Holder has not acquired title to the suit land by the Sale Deed dated 25/03/1993 executed by the Court Commissioner?

2. Whether the learned Courts below erred in law in not deciding the vital issue as to whether the Decree Holder is entitled to recover possession of the suit land in execution of decree for specific performance?”

3. Mr. Bhole, learned Counsel appearing for the Appellants in Second Appeal (St) No.22336 of 2022, submitted that above substantial questions of law are also involved in said Second Appeal.

II. Challenge:

4. The challenge in both these Second Appeals is to the legality and validity of the Judgment and Decree dated 29th February 2020 passed by the learned 26th Joint Civil Judge, Senior Division, Pune, District - Pune [“Executing Court”] in Application bearing Exhibit 238-A in Regular Darkhast No.205 of 1991. The said Application bearing 238-A has been filed by the Original Plaintiff i.e. Respondent No.1 under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (“CPC”) for removal of obstructionists i.e. Appellants from the suit property and seeking prayer that vacant and peaceful possession of the suit property be handed over to the Respondent No.1. The obstructionists filed objection at Exhibit-250 and Exhibit-253. By said Order dated 29th February 2020, the learned Executing Court allowed the said Application at Exhibit 238-A and rejected the objection of the obstructionists at Exhibit-250 and Exhibit-253. The learned Executing Court issued possession warrant under Order XXI Rule 97 of CPC by directing removal of obstruction in execution of decree and further directed the obstructionists i.e. Appellants to vacate the premises within one month from the date of the order.

5. The said Judgment and Decree dated 29th February 2020 of the learned Executing Court has been challenged by the obstructionists by filing Regular Civil Appeal No.169 of 2020 (Appellants – Alka Shrirang Chavan and Anr.) and Regular Civil Appeal No.68 of 2022 (Appellant –Jaymala Shriram Date). Both these Appeal were dismissed by the common Judgment and Decree dated 12th April 2022 passed by the learned District Judge-13, Pune [“Appellate Court”].

6. Being aggrieved by both these Judgment and Decrees of the learned Executing Court and the learned Appellate Court, the present Second Appeals have been filed. As noted herein above, a learned Single Judge has framed the substantial questions of law by above referred Order dated 2nd May 2022.

III. Submissions of Appellants:

7. Mr. Sakhardande, learned Senior Counsel for the Appellants raised the following submissions:-

(i) Learned Senior Counsel submitted that as per the settled legal position, the doctrine of lis pendens does not annul the conveyance or the transfer but only renders it ‘subservient’ i.e. subject to the rights of the parties to a litigation.

(ii) The Decree Holder - Respondent No.1 had notice that the suit property was transferred by the Judgment Debtor - Respondent No.2 in favour of various persons including the vendors of the Appellants, as the transfer of the suit property was by registered sale deeds executed way back in 1987 and the names of the subsequent purchasers including the vendors of the Appellants were mutated in the 7/12 extracts in 1987 itself and a b