Karnataka High Court
Sri Raoji S/O Devaji Patel vs Smt. K.M. Savithridevi Since Dead By Her ... on 13 September, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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WP No. 108019 of 2023
IN THE HIGH COURT OF KARNATAKA, R
DHARWAD BENCH
DATED THIS THE 13TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 108019 OF 2023 (GM-CPC)
BETWEEN:
SRI. RAOJI S/O. DEVAJI PATEL,
AGE: 69 YEARS, OCC: NIL,
R/O. H.NO.1, SIDDESHWAR NAGAR,
UNKAL CROSS, HUBALLI, PIN-580031.
...PETITIONER
(BY SRI. ANAND R. KOLLI, ADVOCATE)
AND:
1. SMT. K.M. SAVITHRIDEVI,
SINCE DEAD BY HER LR'S.
1A. SHRI K.M. JAGADISH S/O. SAVITHRIDEVI,
SINCE DECEASED, REPRESENTED BY HIS WIDOW
SMT. SULOCHANA W/O. K.M. JAGADISH,
AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O. DOOR NO.17, 2ND CROSS,
2ND MAIN, ANNAPURNESHWARI LAYOUT,
GIRIJA A J.P. NAGAR, 7TH PHASE, BENGALURU, PIN-560062.
BYAHATTI
Location: HIGH 1B. SHRI K.M. BASAVARAJ @ BHUVANESH
COURT OF
KARANTAKA S/O. SAVITHRIDEVI,
DHARWAD
BENCH AGE: 64 YEARS, OCC:
R/O. 571 , 6TH MAIN, 9TH CROSS,
SADASHIVANAGAR, BENGALURU, PIN-560056.
1C. SMT. JAYASHREE
D/O. SAVITHRIDEVI W/O. VIJAYKUMAR,
SINCE DEAD BY HER LR'S
1(C1) SHRI VIJAYAKUMAR
S/O. GURUBASAYYA KASHIMATH,
AGE: 68 YEARS, OCC: RETIRED OFFICIAL,
R/O.#412, BLOCK "C" NANDI CITADELL,
NOBEL RESIDENCY ROAD, AKSHAYANAGAR,
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CHANDRASHEKARAPUR, BENGALURU, PIN-560076.
1(C2) SHRI VARUNDEV
S/O. VIJAYAKUMAR KASHIMATH,
AGE: 37 YEARS, OCC: SOFTWARE ENGINEER,
R/O.#412, BLOCK "C" NANDI CITADELL,
NOBEL RESIDENCY ROAD, AKSHAYANAGAR,
CHANDRASHEKARAPUR, BENGALURU, PIN-560076.
1(C3) SHRI SHARATHCHANDRA
S/O. VIJAYAKUMAR KASHIMATH,
AGE: 31 YEARS, OCC: SOFTWARE ENGINEER,
R/O.#412, BLOCK "C" NANDI CITADELL,
NOBEL RESIDENCY ROAD, AKSHAYANAGAR,
CHANDRASHEKARAPUR, BENGALURU, PIN-560076.
1D. SMT. VIJAYASHREE
D/O. SAVITHRIDEVI W/O. H.M. RUDRESH,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O. #597, "SHANTA" 3RD CROSS, 4TH MAIN ,
7TH PHASE , R.B.I. LAYOUT, J.P. NAGAR,
BENGALURU, PIN-560078.
1. RAJASHEKARAYYA
SINCE DEAD BY HIS LR'S.
1A. SMT. MUKTABAI
W/O. RAJASHEKARAYYA ULAGADDIMATH,
AGE: 75 YEARS, OCC: HOUSEHOLD WORK,
R/O. ULLAGADDI ONI, HUBBALLI, PIN-580020.
1B. SRI. VISHWAPRAKASH
S/O. LATE RAJASHEKARAYYA,
SINCE DEAD BY HIS LR'S.
SMT. SUNITHA,
W/O. LATE VISHWAPRAKASH,
AGE: 49 YEARS, OCC: BUSINESS,
R/O. NO.10, VISHWAPRAKASH TARGET TOOLS,
ULLAGADDIMATH ONI, HUBBALLI, PIN-580020.
1C. SMT. SHARADABAI
W/O. N.J. RUDRAPRAKASH,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
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R/O. SIDDAGANGA OIL EXTRACTS,
NO. BHATAWADI, NEAR APMC YARD,
TUMKUR, PIN-572101.
1D. SRI SHASHIDHAR
S/O. RAJASHEKARAYYA ULLAGADIMATH,
AGE: 53 YEARS, OCC: BUSINESS,
R/O. ULLAGADDIMATH ARMS AND
AMMUNITION DEALER,
10/1, ULLAGATTIMATH ROAD,
HUBBALLI, PIN-580020.
2. SMT. RATHNAPRABHA W/O. R. RAIKAR,
AGE: 57 YEARS, OCC: BUSINESS,
R/O. SRI KAMAKSHI JEWELERS,
DOOR NO.44/1, 4TH CROSS, MALLESHWARAM ,
BENGALURU, PIN-560003.
3. SEEMUBAI SINCE DEAD BY HER LRS
3A. DEFENDATS NO.1(A) AND 1(D) ALREADY ON RECORD.
4. SRI. K.M. OMPRAKASH S/O. SAVITHRIDEVI,
AGE: 69 YEARS, OCC: BUSINESS,
R/O. NO.567 , 21ST MAIN, 4TH BLOCK,
NEAR SUDHANARAYANA MURTHY,
INFOSYS HOUSE JAYANAGAR,
BENGALURU, PIN-560001.
..RESPONDENTS
(BY SRI. B.S. KUKANAGOUDAR, ADV. FOR
R1(A), R1(B), R1(C1), R1(C2), R1(C3), R1(D);
R1(1A), R2 & R4 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT OF NATURE OF CERTIORARI QUASHING THE IMPUGNED
ORDER DATED 23.11.2023 PASSED BY THE IST ADDITIONAL SENIOR
CIVIL JUDGE HUBBALLI IN EP NO.196/2022 THEREBY DISMISSING
THE INTERLOCUTORY APPLICATION NO. V FILED U/O XXI RULE 97
AND 101 OF CPC FILED BY THE PETITIONER/OBSTRUCTER MARKED
AS ANNEXURE-F IN THE INTEREST OF JUSTICE AND EQUITY.
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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 30.08.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
CAV ORDER
(PER: HON'BLE MR. JUSTICE H.P. SANDESH)
The relief sought in the writ petition is to issue a writ in
the nature of certiorari to quash the impugned order dated
23.11.2023 passed by I Addl. Senior Civil Judge, Hubballi in
E.P.no.196/2022 thereby dismissing the I.A.No.V filed under
Order XXI rule 97 and 101 of Code of Civil Procedure, 1908
(for short, 'CPC') as per Annexure-F and such other writ or
order or direction as this Court deems fit in the facts and
circumstances of the case.
2. The factual matrix of the case of the petitioner is
that he had filed a suit bearing O.S.No.91/2000 for the relief
of specific performance and the said suit was decreed vide
Annexure-A on 21.12.2000. The respondents herein had filed
a Miscellaneous Appeal No.21554/2008 as against the orders
passed in Miscellaneous Appeal and also for the limitation
and this Court had allowed the appeal and remanded the
matter on 25.07.2014 vide Annexure-B. The respondents
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herein had filed Execution Petition No.196/2002 which is
produced as Annexure-C. The petitioner had filed obstructer
application under Order XXI Rule 97 read with 101 of CPC
and prayed the Trial Court to determine the rights of the
applicant and the application in I.A.No.V is also produced as
Annexure-D. The respondents had filed objections to
I.A.No.V vide Annexure-E. The Trial Court had dismissed the
said application filed by the petitioner in terms of Annexure-F
vide order dated 23.11.2023 and hence, the petitioner has
filed this Writ Petition having no alternative remedy.
3. The main ground urged in the petition that the
Trial Court ought to have allowed the application and
impugned order is not sustainable in the eye of law. The
Trial Court had failed to take note of the intention of the
legislation of Order XXI Rule 97 and 101 of CPC and
erroneously dismissed the same in spite of this Court had
allowed M.F.A.No.21554/2008 and the respondents are
parties to the proceedings and the subject matter of the said
suit and the present suit are one and the same. It is
contended that once the rights of the parties have already
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been confirmed by this Court and further after the order of
remand, they have not taken any steps for reopen the
matter so the defence taken by the judgment debtor in
respect of collusion will not hold good so rights of the
plaintiff in O.S.No.91/2000 are to be decided in accordance
with law and the Trial Court fails to adjudicate the claim of
the petitioner and in spite of adjudicating the same, without
recording the evidence, dismissed the application. Hence, it
requires interference.
4. The counsel for the petitioner in support of his
argument, relied upon the judgment of the Hon'ble Apex
Court in the case of Jini Dhanrajgir and another Vs.
Shibu Mathew and another etc.1and brought to the notice
of this Court the discussion made in paragraph 22 wherein
considering the scheme of Order XXI Rules 97 to 106, relied
upon the judgment in Silverline Forum Pvt. Ltd. v. Rajiv
Trust & another reported in 1998 SAR (Civ) 288 wherein
it is held that it is clear that executing court can decide
whether the resistor or obstructer is a person bound by the
1
2023 Supp. SAR (Civ) 556
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decree and he refuses to vacate the property. That question
also squarely falls within the adjudicatory process
contemplated in Order 21, Rule 97(2) of the Code. The
adjudication mentioned therein need not necessarily involve
a detailed enquiry or collection of evidence. Court can make
the adjudication on admitted facts or even on the averments
made by the resistor. Of course, the Court can direct the
parties to adduce evidence for such determination if the
Court deems it necessary. The counsel also brought to the
notice the paragraphs No.27, 28, 30 and also 31 wherein the
discussion was made and held that the Executing Court shall
proceed to deal with the application of the Appellants under
Rule 97 of Order 21 of the CPC together with the objections
raised by the Respondents on their own merits and without
being influenced by any observation made in this order.
5. The counsel also relied upon the judgment of the
Hon'ble Apex Court in the case of Smt. Ved Kumari (Dead
through her legal representative) Dr. Vijay Agarwal vs.
Municipal Corporation of Delhi through its
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Commissioner2 wherein also the judgment referred supra
was discussed and in para 15 of the judgment held that the
Executing Court could not have dismissed the execution
petition by treating the decree to be inexecutable merely on
the basis that the decree-holder has lost possession to a
third party/encroacher. If this is allowed to happen, every
judgment-debtor who is in possession of the immoveable
property till the decree is passed, shall hand over possession
to a third party to defeat the decree-holder's right and
entitlement to enjoy the fruits of litigation and this may
continue indefinitely and no decree for immovable property
can be executed.
6. The counsel also relied upon the judgment of the
Hon'ble Apex Court in the case of Sameer Singh and
another Vs. Abdul Rab and others3wherein also the
Hon'ble Apex Court while dealing with whether court had
passed a decree against which appeal would lie under CPC
and therefore, petition under Article 227 not maintainable
2
SLP (C) Nos.12601-12602/2017 disposed of on 24.08.2023
3
(2015) 1 SCC 379
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where executing court does not adjudicate upon lis between
parties under Order 21 Rule 101 CPC on ground that it has
become functus officio and thereby lost jurisdiction, order
passed by it cannot be deemed to be a decree under Order
21 rule 103 CPC.
7. The counsel also relied upon the judgment of the
Hon'ble Apex Court in the case of Brahmdeo Chaudhary
Vs. Rishikesh Prasad Jaiswal and another4 referring this
judgment, the counsel would contend that resistance offered
by the appellant stranger occupying the decretal premises
and asserting his own right and right of appellant
obstructionist in possession to be heard and his alleged right
to the property to be adjudicated upon objections of the
appellant on merits under Rue 97(2) read with Rule 101 and
98 instead of insisting upon first handing over possession
and then moving of application by the appellant under Rule
99.
4
(1997) 3 SCC 694
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8. The counsel also relied upon the judgment of the
Hon'ble Apex Court in the case of Bhanwar Lal and
Satyanarain and another5 wherein it is held that Rule
35(3) applies where the person resisting execution fo the
decree is bound by the decree whereas Rule 97 applies
where 'any person' resists execution of the decree and
application filed by the appellant therein under Rule 97 on
18.07.1979, the same dismissed by executing Court as
barred by limitation and the same day a third application
made under Rule 97 also dismissed as barred by res judicata
and held that the application dated 25.05.1979 should have
been treated as one under Rule 97(1) and none application
not barred by limitation and question of res judicata then
would not arise.
9. The counsel also relied upon the judgment of the
Hon'ble Apex Court in the case of Shreenath and another
Vs. Rajesh and others6 wherein discussion is made with
regard to Order 21 Rule 97(1) and (2), 101, 98, 99, 100 and
5
(1995) 1 SCC 6
6
(1998) 4 SCC 543
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103 and held that the maintainability of such
application/objection is not affected by the provisions of
amended Rule 99 or unamended Rule 100 and - words "any
person" occurring in Rule 97(4) held that include even
persons not bound by the decree-words and phrases-"any
person". The words "any person" it includes all persons
resisting the delivery of possession, claiming right in the
property, even those not bound by the decree, including
tenants or other persons claiming right on their own,
including a stranger. Hence, the counsel for the petitioner
prayed to allow the Writ Petition.
10. Per contra, counsel appearing for the respondent
would vehemently contend that the Trial Court has not
committed any error on factual aspects. He would contend
that when the respondent had filed the suit for the relief of
partition in the year 1992, the same was decreed on
12.06.1995. The alleged agreement in favour of the
petitioner is dated 22.01.1996 i.e., subsequent to the decree
and the same is also an ex parte decree and the said suit
was decreed in the year 1999 and he kept quite for a period
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of 22 years and he comes with an obstruction application in
the Execution Petition, when the Execution Petition is filed
for taking possession. He would also contend that in view of
the preliminary decree in the year 1995, the FDP is filed and
FDP is allowed and the property is also allotted in favour of
the respondent. The counsel would vehemently contend that
Rule 102 and 103 are very clear with adjudicatory process.
Rule 102 is clear with regard to Rule 98 and 100 do not
applicable to transferee pendente lite and nothing in Rules
98 and 100 shall apply to resistance or obstruction in
execution of a decree for the possession of immovable
property by a person to whom the judgment-debtor has
transferred the property after the institution of the suit in
which the decree was passed or to the dispossession of any
such person. Transfer includes a transfer by operation of
law. The counsel would contend that Rule 103 is very clear
that where any application has been adjudicated upon under
rule 98 or 100, the order made thereon shall have the same
force and be subject to the same conditions as to an appeal
or otherwise as if it were a decree.
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11. The counsel in support of his argument, relied
upon the judgment of the Hon'ble Apex Court in the case of
Usha Sinha Vs. Dina Ram and others7 while dealing with
obstruction by purchaser pendente lite, object and scope of
order 21 rule 102 restated and it is based on justice, equity
and good conscience and a transferee from a judgment
debtor is presumed to be aware of the proceedings before a
court of law and it recognizes the doctrine of lis pendens
Section 52 of the transfer of property act, 1882 and held that
if unfair, inequitable or underserved protection is afforded to
a transferee pendente lite, a decree holder will never be able
to realize the fruits of his decree.
12. The counsel also brought to the notice of this
Court that a reference is made in the very same judgment in
the case of Sarvinder Singh vs Dalip Singh and others8
wherein held that the alienation obviously would be hit by
the doctrine of lis pendens by operation of Section 52.
7
(2008) 7 SCC 144
8
(1996) 5 SCC 539
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13. The counsel also relied upon the judgment of this Court
in the case of M.S. Khalid and others Vs. K.R.
Rangaswamy and others9 wherein discussion was made
wth regard to Section 96 of CPC, Order 21 Rules 97, 98 and
103 of Karnataka Civil Rules of Practice, 1967 and Rule 5(b)
adjudication of application of an objector under Rule 98 of
Order 21 of CPC tantamount to a decree and held that the
appeal filed thereon is an appeal under Order 21 rule 103
CPC. It has to be treated as 'Regular Appeal' and not as an
'Execution Appeal'.
14. The counsel also relied upon the judgment of the
Hon'ble Apex Court in the case of S. Rajeswari Vs. S.N.
Kulasekaran and others10 wherein discussion was made
under order 21 Rule 97 and 103 and held that order passed
in such proceedings must be treated as a decree against
which only an appeal lay to the appellate court, and a
revision application, therefore in the light of clear prohibition
contained in Section 115(2) would not be maintainable and
9
AIR 2003 KAR 174
10
(2006) 4 SCC 412
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revisional court cannot act contrary to express provision of
Section 115(2) and entertain revision on ground of cutting
short litigation or to avoid injustice.
15. Having heard the petitioner's counsel and also the
counsel for respondent and also the principles of law laid
down in the judgments referred supra, the point that would
arise for consideration is:
1) Whether the Trial Court has committed an error in
dismissing the application filed by the petitioner filed
under Order 21 Rule 97 and 101 of CPC and whether
the same requires interference?
16. Having considered the factual aspects, it is admitted
fact that the respondents have filed a suit for relief of
partition in the year 1992 and the same also came to be
decreed in 1995 wherein 1/3rd share has been granted in
favour of the respondent. It is not in dispute that FDP is also
filed and the same is allowed. Consequently execution
petition is filed before the Trial Court to execute the rights
conferred upon the respondents. It is also not in dispute
that application is filed by the petitioner invoking Order 21
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Rule 97 and 101 of CPC and other allied provisions. The
factual aspect is also very clear that the petitioner also filed
a suit for the relief of specific performance based on the sale
agreement executed on 22.01.1996. Hence, it is clear that
the vendor of the petitioner who had suffered the judgment
and decree of the partition had entered into an agreement of
sale with the present petitioner. It is also not in dispute that
the said suit was decreed exparte and miscellaneous petition
was filed and the same was dismissed on the ground of delay
and the same has been challenged before this Court in MFA
No.21554/2008 as per Annexure-B and the matter has been
remitted back to the Trial Court to dispose of the same on
merits.
17. There is no dispute with regard to factual aspect is
concerned and it is also not in dispute that the petitioner
entered into a sale agreement and obtained the specific
performance decree subsequent to the decree passed in
favour of the respondent. It is important to note that the
petitioner is claiming right based on the subsequent
agreement dated 22.01.1996 and there was already a decree
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in favour of the respondent vide judgment and decree dated
12.06.1995. The said fact is taken note of by the Trial Court
while rejecting the application filed by the petitioner herein.
Paragraph 9 of the impugned order discloses the factual
aspects of the case. So also paragraph 10 discloses with
regard to the judgment and decree passed prior to entering
into the sale agreement by the petitioner and comes to the
conclusion that it is clear transfer by judgment debtor or
deceased Sheemubai after not only at institution of suit but
also after the decree is passed in that suit against the
judgment debtor. It is also important to note that the Trial
Court also comes to the conclusion that no one can transfer
a better title than he himself possesses "Nemo dat quod non
habet". However, this Rule has certain exceptions and one of
them is that the transfer must be in good faith for value and
there must be no misrepresentation or fraud, which would
render the transaction as void and also that the property is
purchased after taking reasonable care to ascertain that the
transferee has the requisite power to transfer said land and
finally that the parties have acted in good faith as required
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under Section 41 of Transfer of Property Act, 1882 (for short,
'TP Act').
18. No doubt, the counsel appearing for petitioner has
relied upon the judgment regarding maintainability of the
writ petition and the same is applicable to the case on hand
if no adjudicatory process has taken place in view of the
judgment in Sameer Singh (supra) in the case on hand
also, no adjudicatory process has taken place and not
recorded the evidence. Hence, the writ petition is
maintainable as contended by the petitioner's counsel.
19. The judgment relied on by the respondent in Usha
Sinha (supra) it is very clear that Order 21 Rules 102, 97,
98 and 100 regarding obstruction by purchaser pendente lite
and the scope is also discussed and held that it is based on
justice, equity and good conscience and a transferee from a
judgment debtor is presumed to be aware of the proceedings
before a court of law and it recognizes the doctrine of lis
pendens Section 52 of the TP Act and held that if unfair,
inequitable or underserved protection is afforded to a
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transferee pendente lite, a decree holder will never be able
to realize the fruits of his decree.
20. In the case on hand, it is also very clear that after
the judgment and decree the petitioner entered into an
agreement in the year 1996 and the decree was passed in
the year 1995 itself in favour of respondent and his vendor
has suffered a decree and in spite of it, this petitioner has
entered into an agreement and also taking note of the fact
that the suit is filed against the judgment debtor and exparte
decree was obtained based on the sale agreement which
came into effect after the decree. It is also brought to the
notice of this Court that though the decree was passed in the
year 2000, objector application is filed in 2022 almost after
22 years. It is important to note that in view of the
principles laid down in the judgments referred supra, it is
held that this obstruction by purchaser pendente lite, the
doctrine of lis pendens Section 52 of TP Act is applicable to
the facts on hand. No doubt, the counsel also relied upon the
judgment in Ved Kumari (supra) wherein also the judgment
in Jini Dhanrajgir's case is discussed. In Jini Dhanrajgir's
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case at paragraph 22 discussion was made referring the
judgment in Silverline Forum Pvt. Ltd. Vs. Rajiv Trust
and another. It is very clear that the executing Court can
decide whether the resistor or obstructer is a person bound
by the decree and he refuses to vacate the property. That
question also squarely falls within the adjudicatory process
contemplated in Order 21, Rule 97(2) of the Code. The
adjudication mentioned therein need not necessarily involve
a detailed enquiry or collection of evidence. Court can make
the adjudication on admitted facts or even on the averments
made by the resistor. This discussion goes against the
petitioner. In view of the factual aspects of the case that the
petitioner has entered into sale agreement subsequent to the
decree with one of the defendants who had suffered the
decree. In Ved Kumari's case in paragraph 15 discussion
made with regard to Rule 97 to 101 of Order 21 of CPC
wherein held that the Executing Court could not have
dismissed the execution petition by treating the decree to be
inexecutable merely on the basis that the decree-holder has
lost possession to a third party/encroacher. If this is allowed
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to happen, every judgment-debtor who is in possession of
the immoveable property till the decree is passed, shall hand
over possession to a third party to defeat the decree-holder's
right and entitlement to enjoy the fruits of litigation and this
may continue indefinitely and no decree for immovable
property can be executed.
21. In the case on hand, the judgment and decree was
passed before entering into the sale of agreement and if the
same is resisted by the subsequent purchaser who is the
obstructer lis pendens Section 52 applies. The said
judgment also not comes to the aid of the petitioner. No
doubt, the Trial Court has not adjudicated the same by
conducting any enquiry and no need of enquiry also in the
present case required and there is no dispute with regard to
the fact that earlier there was a decree in favour of
respondents and subsequently he entered into an agreement
of sale and doctrine of lis pendens under Section 52 of TP Act
applies.
22. In Usha Sinha's case, the Hon'ble Apex Court has
clearly held that the Court has to take note of the very
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object and scope of objection by purchaser pendente lite and
a transferee from a judgment debtor is presumed to be
aware of the proceedings before a court of law. When such
being the case, the Apex Court held that if unfair, inequitable
or underserved protection is afforded to a transferee
pendente lite, a decree holder will never be able to realize
the fruits of his decree. This decision is aptly applicable to
the case when the petitioner is given protection under Order
21 Rule 97, 98 and 100. It is nothing but scuttling of
proceedings in terms of judgment and decree which was
passed in the year 1995 itself. A subsequent purchaser
when his vendor was not having any right and had suffered a
decree, if he conveys any right interest in favour of the
present petitioner and the same is also subject to lis pendens
Section 52 of TP Act and hence, I do not find any error
committed by the Trial Court in dismissing the application
and no need of adjudicatory process in view of factual
admitted facts available on record.
23. Though the Writ Petition is maintainable to consider
the factual aspects are concerned, lis pendens under Section
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52 of TP Act is applicable to the case on hand. If
adjudicatory process by entertaining the same when there is
no factual dispute, it will curtail the right of the respondent
and the judgments which have been relied upon by the
petitioner's counsel will not come to the aid of the petitioner.
Hence, I do not find any merit in the petition to quash the
order as sought in the petition and there is no any merit in
the writ petition and the same is devoid of merits.
24. Apart from, Section 102 of CPC is also very clear
that bars the person who comes before the court for the
adjudicatory process when there was a decree and proviso is
also very clear that no need of adjudication of process and
the Hon'ble Apex Court in the case of Usha Sinha and
Servinder Singh held that for invoking Rule 102, it is
enough for the decree holder to show that the person
resisting the possession or offering obstruction is claiming his
title to the property after the institution of the suit in which
decree was passed and sought to be executed against the
judgment debtor. If the said condition is fulfilled, the case
falls within the mischief of Rule 102 and such applicant
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cannot place reliance either on Rule 98 or Rule 100 of Order
XXI. Hence, categorical ratio is laid down in the judgments
referred supra and proviso (1) and (2) of Order 21 is also
clear that rules not applicable to transferee pendente lite and
specifically held that nothing in Rules 98 and 100 shall apply
to resistance or obstruction in execution of a decree for the
possession of immovable property by a person to whom the
judgment-debtor has transferred the property after the
institution of the suit in which the decree was passed or to
the dispossession of any such person. When the said proviso
is clear and when Rule 98 and 100 not comes to the aid of
the petitioner, question of determination does not arise
though counsel would contend that Rule 101 comes to the
aid of the petitioner, the same will also not come to the aid
of the petitioner in view of Rule 102 and there is no any
independent right in favour of the petitioner as claimed. The
petitioner purchased the right through the defendant but he
had suffered the decree in the earlier judgment and doctrine
of lis pendens Section 52 applies. Hence, the Writ Petition
deserves to be dismissed.
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25. In view of the discussions made above, I pass the
following:
ORDER
Writ Petition is dismissed.
Sd/-
(H.P. SANDESH) JUDGE Naa CT-MCK List No.: 1 Sl No.: 94