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2026 Supreme(Online)(Bom) 2011

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
Ajit B. Kadethankar, J
Kashinath Ramji Shinde – Appellant
Versus
Pradip Madhavrao Shinde – Respondent
WRIT PETITION NO.12195 OF 2024

Advocates:
For the Appellants/Petitioners: R.F.Totala, V.S.Kabra, Swapnil Lohiya
For the Respondents: P.V.Mandlik, P.P.Mandlik

The deletion of a defendant from a suit under Order 1 Rule 10 is not a withdrawal of the claim. A purchaser pendente lite is bound by the decree, and the execution is maintainable against them despite their earlier deletion as a party from the proceedings.

Headnote:(A) Code of Civil Procedure, 1908 - Order 1 Rule 10, Order 21 Rule 35, Order 23 Rule 1 - Transfer of Property Act, 1882 - Section 52 - Execution of decree for possession - Deletion of a party from the array of defendants during trial - Whether such deletion operates as a withdrawal of suit resulting in abandonment of claim - Held, deletion of a party under Order 1 Rule 10 is distinct from withdrawal of suit under Order 23 Rule 1; it does not perpetually forfeit the claim against such party. (Paras 5.1, 5.2, 5.3)

(B) Execution - Person bound by decree - Purchaser pendente lite - A transferee of property during the pendency of a suit for possession is a 'person bound by the decree' under the provisions of the code, regardless of their prior removal from the suit as a defendant. (Paras 5, 5.1)

Facts of the case:
The petitioner, a decree-holder initiated execution proceedings for possession of property following a successful suit. During the pendency of the original suit, the property was purchased by a third party who was initially impleaded as a defendant but later deleted from the array of parties upon the plaintiff's application. The executing court rejected the application for possession against said purchaser, concluding that the deletion of their name meant they were no longer bound by the pending decree.

Findings of Court:
The court found that the deletion of a defendant under Order 1 Rule 10 is not equivalent to an abandonment of a claim under Order 23 Rule 1. Since the purchase occurred during the pendency of a suit for possession, the rights of the purchaser were subject to the outcome of the litigation by virtue of the doctrine of lis pendens.

Issues: Whether the deletion of a defendant from a suit under Order 1 Rule 10 of the Code of Civil Procedure, 1908, prevents the execution of a decree for possession against a purchaser pendente lite who claims interest through a judgment debtor.

Ratio Decidendi: Execution against a purchaser pendente lite is permissible because, under the doctrine of lis pendens, such a purchaser is bound by the decree. Deletion of a party for procedural reasons does not constitute an abandonment of the underlying claim against the property or the interest held by the transferee.

Result: Petition allowed; the order of the executing court was set aside, and the application for execution was allowed.

JUDGMENT :-

Rule. Rule made returnable forthwith. At the instance of learned counsel for the parties, the Writ Petition is heard for final disposal. Parties submit that their pleadings are already complete and they do not want to file on record any additional pleadings.

Preface:

Feeling aggrieved by an order dated 19.08.2024 passed by the learned Civil Judge, Senior Division (Corporation Court), Aurangabad, rejecting petitioner’s application filed below Exh.145-D in Regular Darkhast No.08 of 2013, the Petitioner/Decree-Holder is before this Court.

After a long Court battle initiated in 1987, the Petitioner succeeded in 2011 to get a Decree for Possession, Declaration and Mesne Profit in his Suit. In 2013, the Petitioner/Decree holder lodged proceedings under Order 21 Rule 35 of the Code of Civil Procedure 1908 [‘C.P. Code of 1908’ for the sake of brevity] for possession of the decretal property. In the execution proceedings, the petitioner’s application seeking directions against the Respondent No. 7 - a purchaser pendente lite for possession came to be turned down by the Executing Court. Notably, the Petitioner had once added name of Respondent No. 7 in the Suit and later deleted him under Order 1 Rule 10 of the C.P. Code of 1908.

Petitioner’s case is that the Respondent No.7 being a purchaser pendente lite u/s 52 of the Transfer of Property Act 1882, falls within the meaning of ‘any person bound by Decree’ as provided in Order 23 Rule 35 of the C.P. Code of 1908. Per contra, Respondent No.7’s case is that once he was deleted in the suit, the Decree holder Petitioner lost every claim against him.

As such, conundrum in the case in hand is, if a purchaser pendente lite who was once added and later deleted in the suit U/o 1 Rule 10 of the C.P.C.1908, is immune from applicability of Order 21 Rule 35 of the C.P.C.1908.

Facts in brief:

Facts are almost undisputed, and can be sequentially narrated as below: -

The petitioner purchased a residential property vide a registered sale deed from its predecessor owner on 06-09-1976. Dispute arose as the Respondent Nos. 1 and 2 entered their names in the city survey record of the 'subject-matter property' and obtained construction permission from the Municipal Corporation. The Respondent Nos.1 and 2 even sold portions of the 'subject-matter property' to the Respondent Nos. 5 and others (defendants Nos. 5 to 10).

The Petitioner was constrained to file Regular Civil Suit No.435 of 1987 in the court of the learned Civil Judge (S.D.) Aurangabad in respect of municipal property no. 5-17-33/PART situated at Mohalla Samatanagar at Aurangabad (‘Suit property/Decretal property’ for the sake of brevity). The record reveals that the Suit was once renumbered as Special Civil Suit No. 277 of 1998, and then again renumbered as Regular Civil Suit No.777 of 2002.

In the course of time, the Suit for injunction was amended with prayers for Declaration, Possession and Mesne profit. Construction permission granted by the then Municipal Corporation and the conveyance deeds executed by the Respondent Nos. 1 and 2 in favour of Respondent No. 5 and others were also under challenge.

The Respondent Nos. 1 and 2, on the other hand filed Regular Civil Suit no. 413 of 1987 seeking injunction against the Petitioner.

During pendency of the Suit, the Respondent Nos.1 and 2 also sold a portion of the 'Suit property’ to the Respondent No.7. Consequently, the Respondent No. 7 was added in Petitioner’s suit as Defendant No.11 at the fag end of the Trial. The evidence part was over. Petitioner was cross-examined by the Respondent No. 2, from whom the Respondent No.7 has claimed interest in the Suit property.

During the Trial, an application was filed by the Respondent No.7 (Defendant no. 11) seeking permission to cross examine the petitioner/plaintiff. It was objected by the Petitioner citing the reason that the subsequent purchaser can not re-open cross examination of the plaintiff. However, after hearing the parties the Trial

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2026 Supreme(Online)(Bom) 2011

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADAjit B. Kadethankar, JKashinath Ramji Shinde – AppellantVersusPradip Madhavrao Shinde – RespondentWRIT PETITION NO.12195 OF 2024

The deletion of a defendant from a suit under Order 1 Rule 10 is not a withdrawal of the claim. A purchaser pendente lite is bound by the decree, and the execution is maintainable against them despite their earlier deletion as a party from the proceedings.

Cases Referred (3)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
Ajit B. Kadethankar, J
Kashinath Ramji Shinde – Appellant
Versus
Pradip Madhavrao Shinde – Respondent
WRIT PETITION NO.12195 OF 2024