A transferee pendente lite is barred from claiming possession of property in execution of a decree under Order XXI Rule 102 of the Code of Civil Procedure, 1908.

Headnote:
EXECUTION - CLAIM PETITION - PENDENTE LITE TRANSFER - LEASE - APPLICABILITY OF ORDER XXI RULE 102 OF THE CODE OF CIVIL PROCEDURE, 1908 - SUMMARY
Fact of the Case:

Appellant filed a claim petition under Order XXI Rule 97 and Section 151 of the Code of Civil Procedure, 1908, claiming possession of a property as a tenant under a lease agreement executed with the judgment debtor (first respondent) after a decree was passed against the first respondent. The second respondent, who had obtained a decree against the first respondent in a separate suit, contended that the appellant was a transferee pendente lite and that the claim petition was not maintainable.
Finding of the Court:

The court held that the appellant was a transferee pendente lite and that the bar under Order XXI Rule 102 of the Code of Civil Procedure, 1908, applied. The court dismissed the claim petition, holding that the appellant was not entitled to the protection of the Kerala Buildings (Lease and Rent Control) Act, 1965.
Issues: Whether the appellant, as a tenant under a lease agreement executed after a decree was passed against the judgment debtor, was a transferee pendente lite.
Ratio Decidendi: The court relied on the following legal provisions and principles:* Order XXI Rule 102 of the Code of Civil Procedure, 1908, which bars a transferee pendente lite from claiming possession of property in execution of a decree.* Jumailath Beevi & Ors. v. Rajeena & Ors. [2020 (4) KHC 443], which held that the scope of adjudication in cases involving resistance or obstruction by a transferee pendente lite is limited to determining whether the person resisting or dispossessed was a transferee during the pendency of the suit in which the decree was passed.* Sriram Housing Finance & Investment India Ltd. v. Omesh Mishra Memorial Charitable Trust [2022 KHC 6650], which held that only the decree holder can make an application under Order 21 Rule 97 of the Code of Civil Procedure, 1908, complaining about resistance or obstruction.
Final Decision: The court dismissed the execution second appeal, holding that the appellant was a transferee pendente lite and that the claim petition was not maintainable.

JUDGMENT

This Execution Second Appeal has been directed against the judgment and decree in A.S.No.18/2022 on the file of Subordinate Judge’s Kannur, which in turn arise out of the order in E.A.No.185/2022 in E.P.No.110/2021 in O.S.No.207/2013 on the file of Principal Munsiff's Court, Kannur.

2. Appellant is the claim petitioner and first respondent is the judgment debtor. Claim petition has been filed under Order XXI Rule 97 and Section 151 of the Code of Civil Procedure, 1908. The decree schedule property and the schedule property in E.P.No.110 of 2021 belong to the first respondent and the appellant was put in possession of the schedule property as per lease agreement dated 03-02-2018 executed between the appellant and the first respondent. An amount of Rs.50,000/- was paid as security deposit at the time of execution of lease agreement to the first respondent. Thereafter, he has been paying rent inclusive of the month of April 2022. In the month of May 2022, first respondent demanded increased rent and the appellant was not amenable for that. The first respondent also failed to issue the receipts for payment of rent and thereafter the relationship between them strained. On 27.06.2022 the Amin of the court inspected the premises and tried to evict the appellant and against which the petition has been filed. The first respondent is colluding with the second respondent to evict the appellant. Hence the petition.

3. First respondent filed counter statement contenting that the appellant was put in possession as per lease agreement dated 03.02.2018. It is admitted that the first respondent received Rs.50,000/- as security deposit. The rent up to February, 2022 alone has been paid. There is no collusion between the respondents.

4. The second respondent filed counter statement contending that the claim petition is not maintainable in view of the decree in O.S No.2017/2013 of the Principal Munsiff's Court, Kannur. As per the decree it is declared that the Sale Deed No.4519/2006 of SRO Kannur is void and not binding on the plaintiff (2nd respondent) and plaint schedule property and first respondent is directed to surrender the plaint schedule property to the second respondent. The appellant and first respondent executed the lease deed collusively after a decree was passed against the first respondent on 21-11-2016 and A.S.No.84/2016 filed against it also dismissed. The doctrine of lis pendense also applies. Hence, he sought for dismissal of the petition.

5. On hearing both sides the execution court found that appellant is claiming under the first respondent/the judgment debtor and he is a transferee pendente lite and the claim petition was dismissed. Against which appeal was filed and the first appellate court by the impugned judgment confirmed the dismissal of the claim petition. Having lost in both the forums, appellant approaches this Court in the Execution Second Appeal.

6. Heard both sides.

7. According to the learned counsel for the appellant, the finding of the first appellate court the bar under Order XXI Rule 102 of the Code will apply since the appellant is a pendente lite transfree is not sustainable in law since he is a tenant entitled for the protection of the Kerala Buildings (Lease and Rent Control)

Act, 1965.

8. The learned counsel for the second respondent on the other hand would contend that the claim petition filed by the appellant under Rule 97 will not apply since Rule 97 of Order 21 of the Code can be invoked only by a decree holder for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property. Here admittedly appellant is not the decree holder or the purchaser as envisaged under Rule 97.

9. Counsel for the second respondent relies on Jumailath Beevi & Ors. v. Rajeena & Ors. [2020 (4) KHC 443], wherein a Division Bench of this Court held that when a resistance or obstruction is offered by a tra

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