Analyzing the Maintainability of Possession Claims Under Order 21 Rule 97 CPC for Lis Pendens Purchasers

In the complex arena of property litigation, particularly within partition suits, the entry of a third-party buyer during the pendency of the case often creates a legal deadlock. When a co-owner sells their share while a suit is still active, the buyer enters the fray as a lis pendens purchaser. The conflict typically reaches a boiling point during the execution stage, when the decree holder attempts to take possession of the property and is resisted by this purchaser.

This leads to a critical legal question: Is a claim under Order 21 Rule 97 of the Civil Procedure Code (CPC) maintainable by such purchasers? While the law provides mechanisms to protect legitimate interests, the intersection of execution rules and the doctrine of lis pendens creates a high threshold for those seeking to obstruct a court-ordered transfer of possession.

Understanding the Framework of Order 21 Rule 97 CPC

Order 21 Rule 97 of the CPC is specifically designed to handle resistance or obstruction to the delivery of possession of immovable property. It provides a remedy for the decree holder or an auction purchaser who is prevented from obtaining possession by any person.

Under this provision, the resisting party, or obstructor, is given an opportunity to claim a right, title, or interest in the property. Following the 1976 amendment, the legal landscape shifted significantly. Proceedings under Rules 97 to 101 are now treated as a mini-trial 2017 0 Supreme(SC) 772, where the executing court is empowered to decide all questions regarding right, title, and interest summarily. This ensures that the decree holder does not have to file a separate suit to remove obstructions, thereby preventing a cycle of endless litigation.

Crucially, any order passed under Rule 103 is a deemed decree 2017 0 Supreme(SC) 772, meaning it is appealable under Order 43 Rule 1(r), rather than being subject to a revision petition

Thangeswari VS Thirumalvalavan

The Doctrine of Lis Pendens and Partition Suits

To understand why a purchaser's claim might be rejected, one must look at Section 52 of the Transfer of Property Act, 1882. This section embodies the doctrine of lis pendens (pending litigation), which dictates that during a suit affecting the rights to immovable property, the property cannot be transferred so as to affect the rights of any party to the suit.

In partition suits, where multiple co-owners are fighting for their respective shares, it is common for one party to sell their interest pendente lite (during the litigation). In such cases, the buyer does not acquire a fresh, independent title; instead, they step into the shoes of the vendor. Consequently, the buyer's rights are subservient to the final outcome of the decree 2017 3 Supreme 267.

As established in Jugalkishore Saraf v. Raw Cotton Co. Ltd.1954 0 Supreme(SC) 32, while transfers during the pendency of a suit are valid to the extent of the vendor's share, the transferee remains bound by the partition's eventual results.

Can a Lis Pendens Purchaser File a Claim Under Rule 97?

The general rule is that a pendente lite purchaser in a partition suit cannot maintain a claim under Order 21 Rule 97 to resist execution. The primary legal hurdle is Order 21 Rule 102 CPC.

The Rule 102 Bar

Order 21 Rule 102 explicitly states that the protections and procedures of Rules 97 and 98 do not apply to resistance offered by a person to whom the property has been transferred after attachment, or by anyone claiming under such a person. Since a lis pendens purchaser claims their right through the judgment debtor (the co-sharer who sold the land), Rule 102 acts as a complete bar 2026 Supreme(Online)(Ker) 24667 and 2024 0 Supreme(Mad) 2159.

Courts have consistently held that because transfers pendente lite are void against the decree, the purchaser possesses no independent title that would allow them to obstruct the executing court 2026 Supreme(Online)(Ker) 24667. Essentially, a subsequent purchaser cannot assert better rights than those held by the judgment debtor 2024 0 Supreme(Kar) 409.

Exceptions and Specific Nuances

While the bar is stringent, there are rare circumstances where a claim might proceed:

1. Independent Title: If a purchaser can prove a pre-existing independent right that does not derive from the judgment debtor, the claim may be maintainable 2023 0 Supreme(Bom) 1512. However, this is difficult to prove for those who purchased the property during the suit.
2. Equity in Superstructures: In cases where a buyer has constructed a building on the land, they may attempt to seek a proportionate share. However, the legal maxim quicquid plantatur solo cedit (whatever is fixed to the soil belongs to the owner) typically prevails unless specific equity is proven 2026 Supreme(Online)(Ker) 24667.
3. The Partition Act, 1893: Under Section 4 of the Partition Act, co-owners of a dwelling house belonging to an undivided family may have specific protections. This section can validly be pressed in service... even at the stage of execution of the final decree for partition to protect the dwelling house from being sold to a stranger transferee 1996 7 Supreme 182.

Procedural Pitfalls and Remedies

Litigants often attempt to bypass the Rule 102 bar by filing parallel suits or impleadment applications. However, the courts are increasingly discouraging these tactics:

• Parallel Proceedings: The pendency of a separate suit challenging the decree generally bars the maintainability of an application under Order 21 Rule 97 to avoid contradictory findings 1999 0 Supreme(Pat) 1023.
• Impleadment Delays: Applications filed under Order 1 Rule 10(2) for impleadment that suffer from significant delay or are based on sale deeds executed in clandestine manner are frequently rejected as they do not confer a valid right in the property 2012 5 Supreme 557.
• Appeal over Revision: It is vital for practitioners to remember that because Rule 103 orders are deemed decrees, the proper remedy is a timely appeal, not a revision under Section 115 of the CPC 2023 0 Supreme(Mad) 2290

  Thangeswari VS Thirumalvalavan

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Key Takeaways for Property Buyers and Litigants

For those purchasing property involved in a partition suit, the risks are substantial. The law prioritize the finality of the court's decree over the interests of a subsequent buyer.

• Subordination to Decree: A lis pendens purchaser is typically bound by the final decree and cannot use Order 21 Rule 97 to block possession due to the bar in Rule 102 2024 0 Supreme(Mad) 2159.
• Limited Remedies: Instead of resisting execution, the purchaser's best recourse is often to work their equities into the final decree proceedings to ensure the allotment of the vendor's share 2017 3 Supreme 267.
• Court Jurisdiction: The executing court has the full authority to decide title disputes summarily under Rule 97, and these decisions are binding unless challenged via appeal 2019 8 Supreme 1.

As these matters are highly fact-specific, the outcome typically depends on the exact timing of the transfer and the nature of the title claimed. This information is provided for general educational purposes and should not be construed as specific legal advice.