Delhi District Court
Naresh Kumar Jain vs Sh. R.L.Kapoor on 18 January, 2023
IN THE COURT OF SH. ARUN KUMAR GARG,
ADDITIONAL DISTRICT JUDGE-05, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
RCA DJ No.216/17
CNR No.DLCT01-013351-2017
Naresh Kumar Jain
S/o Sh. M.R.Jain,
R/o 48(Old) and New No.10,
Measuring 66-1/2, Sq. Yards
Out of total Plot of 200 sq. yards
Out of Khasra No.216 to 221 and 223,
situated in the area of Village - Basai Darapur
in the abadi of Manohar Park,
Rohtak Road, New Delhi. .......... Appellant
Versus
Sh. R.L.Kapoor
S/o Sh. Gurdit Lal Kapoor
Through LRs
1.Sh. Rishabh Sharma
S/o Sh. Krishan Kumar Sharma
R/o House no.111, Old Arya Nagar,
Near Railway Colony,
Ghaziabad (UP)-201001
2.Dr. J.R.Chawla
through Lrs
(a) Smt. Lalita
D/o Sh. J.R.Chawla
RCA DJ No.216/17
Naresh Kumar Jain Vs. R.L.Kapoor
Judgment dated 18.01.2023 Page No.1 of 27
R/o 9, Roche Browne Road,
London, S.R.23
(b)Smt. Usha
D/o Sh. J.R.Chawla
R/o 187, Golf Links,
New Delhi
3.Sh. Raghbir Singh
S/o Sh. Manohar Lal
R/o Gali Mamman Jammadar
Pahari Dheeraj, Sadar Bazar,
Delhi
4.Smt. Lalita,
D/o Late Sh. J.R.Chawla,
W/o Sh. Rajinder Singh
R/o 9, Roche Brown Road,
London, S.R.23
5.Smt. Usha
D/o Sh. J.R.Chawla
R/o 187, Golf Links,
New Delhi ...........Respondents
Date of Institution of appeal : 03.01.2014
Date of Judgment : 18.01.2023
FIRST APPEAL UNDER ORDER XLI AND XLIII READ WITH
SECTION 151 CPC AGAINST THE IMPUGNED ORDER DATED
08.11.2013 PASSED BY MS. SHAMA GUPTA, LD. CIVIL JUDGE-16,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI IN
EXECUTION PETITION NO. M-5/2013 TITLED AS SH.
R.L.KAPOOR THROUGH HIS LRS VS. SH. J.R.CHAWLA AND
ORS.
RCA DJ No.216/17
Naresh Kumar Jain Vs. R.L.Kapoor
Judgment dated 18.01.2023 Page No.2 of 27
JUDGMENT
1. By his judgment, I shall dispose of the present appeal filed by the Objector Naresh Kumar Jain against Order dated 08.11.2013 passed by Ld. Civil Judge-16, Central in Execution Petition no. M-5/13 (hereinafter referred to as the "impugned Order").
2. Brief facts leading to filing of present appeal are that a Civil Suit no. 1292/1989 for recovery of possession of plot of land (measuring 200 square yards) bearing no.46 (old) corresponding to plot no.10 (new) in khasra no.216 to 221 and 223 of village Basai Dara Pur was filed by respondent no.1 on 15.02.1966 against Dr. J.R.Chawla (as defendant no. 1) and Sh. Raghbir Singh (as defendant no. 2) alleging that he had purchased the aforesaid property from defendant no.2 Sh. Raghbir Singh vide registered sale deed dated 25.03.1960 and was in exclusive possession of the same, however, about six month prior to the date of filing of the suit, defendant no.1 in collaboration with defendant no.2 had taken illegal possession of the same and had raised unauthorized construction therein. Subsequently, on separate applications of respondent no. 1/plaintiff, Smt. Lalita Devi and Smt. Usha were impleaded in the aforesaid suit as defendant no.3 and defendant no.4. Defendant no.4 in her written statement had alleged herself to be the owner of the suit property on the basis of a registered sale deed dated 25.06.1960 executed by defendant no.2 in her favour which, according to her, was subsequently amended on 07.02.1962.
RCA DJ No.216/17Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.3 of 27
3. The plaint was initially returned by Ld. Trial Court vide Order dated 14.03.1974 in terms of Order 7 Rule 10 CPC while holding that the Civil Court had no jurisdiction to entertain the same in view of Provisions of Section 185 of Delhi Land Reforms Act. The aforesaid order of Ld. Trial Court was upheld by Ld. District Judge, Delhi vide Order dated 11.11.1976, however was set aside by Hon'ble Delhi High Court in Civil Revision No.169/1977 vide judgment dated 20.03.1986 and the said Civil Suit was remanded back to Ld. Trial Court for a fresh decision in accordance with law. The suit was finally decreed in favour of respondent no.1/plaintiff vide judgment and decree dated 20.10.1998.
4. An execution petition bearing no. 29/2000 was thereafter filed by respondent no.1 seeking execution of the aforesaid decree dated 20.10.1998 passed in CS No. 1292/1989, which was dismissed in default for non- prosecution vide Order dated 03.05.2002 and thereafter, on an application of respondent no.1 under Section 151 CPC filed on 26.02.2004 for restoration of the same, after service of JDs, a bailiff was appointed for taking the possession of suit property. It was at this stage that the objections were filed by the present appellant on 23.07.2010. Objections were also filed by another objector Sh. Satpal Singh on the same day both of whom claimed themselves to be the bonafide purchasers of the suit property for consideration to the extent of 66.5 square yards and 55 square yards respectively.
5. The aforesaid objections filed by the present appellant as well as objector Sh. Satpal Singh were dismissed by Ld. Trial Court vide Order RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.4 of 27 dated 08.11.2013 and the said Order has been impugned by the objector Sh. Satpal Singh and the present appellant by way of two separate appeals.
6. Perusal of record further reveals that the present appeal as well as appeal filed by the another objector Sh. Satpal Singh were earlier disposed of by Ld. Predecessor of this Court vide separate judgments dated 25.07.2014, whereby, the case was remanded back to the Ld. Trial Court with directions to record evidence on the plea of appellant regarding he being a bonafide purchaser of the suit property for value without notice and to decide the aforesaid plea afresh.
7. The aforesaid judgment dated 25.07.2014 of Ld. Predecessor of this Court was challenged by the respondent no. 1/DH before Hon'ble High Court of Delhi in FAO No. 60/2015. The aforesaid appeal was disposed of by the Hon'ble High Court of Delhi vide order dated 18.08.2017, whereby, the judgment dated 25.07.2014 passed by Ld. Predecessor of this Court remanding the matter back to Ld. Trial Court allowing the parties to lead evidence, was set aside with the consent of the parties to the effect that no evidence was required in the matter. This court was accordingly directed to hear the objections filed by the appellant in the present appeal and to decide the same after consideration of the said objections with the reply of respondent no. 1 thereto.
8. Arguments were accordingly heard on behalf of the both the parties who have also filed separate written submissions in support of their respective case.
9. It is submitted by Ld. Counsel for the appellant that Ld. Trial Court RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.5 of 27 has failed to appreciate that the appellant was not bound by the decree dated 20.10.1998 being a bonafide purchaser of the suit property for consideration and without notice of anyone else' claim or right. He submits that admittedly neither the appellant nor his predecessor in interest was a party to the suit in which the decree dated 20.10.1998 was passed in favour of respondent no. 1. He submits that despite being aware of transfer of suit property by defendant no. 4 to Smt. Kanta Devi and Sanjay Kumar, predecessors in interest of the appellant, the plaintiff/respondent no. 1 had failed to implead them in the suit as parties. In the absence of their impleadment in the suit as defendants, accordingly Ld. Counsel for appellant, Smt. Kanta Devi and Sanjay Kumar were not aware of the suit pending between the plaintiff/respondent no. 1 and defendant no. 4. Had they been parties to the aforesaid suit, according to him, they would not have sold the suit property to the subsequent predecessors of the appellant and they in turn would not have sold the same to the present appellant.
10. He submits that no constructive notice in terms of section 3 of the Transfer of Property Act, 1882, of the registered sale deed in favour of respondent no. 1, can be imputed to the present appellant, in as much as, the subject matter of the sale deed in favour of respondent no. 1 was different than the subject matter of the sale deed in favour of present appellant. It is further submitted by Ld. Counsel for the appellant that the suit property was bonafidely purchased by the appellant for valuable consideration, which was paid to the vendors through pay orders, with due diligence, in as much as, the applications of respondent no. 1 for restraining RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.6 of 27 defendant no. 1 from obtaining possession of the suit property from the tenant Sh. Gyan Chand and seeking direction to the defendants to deposit rent of the suit property in the Court were dismissed by Ld. Trial Court vide orders dated 27.07.1966 and 19.10.1968.
11. Moreover, according to him, despite being aware of the sale deed executed by defendant no. 2 in favour of defendant no. 4, the same was never sought to be canceled or declared as void by respondent no. 1 nor any steps were taken by respondent no. 1 to let the public at large know about his ownership of the suit property or about the suit filed by him. He submits that defendant no. 2, having sold the suit property on 25.06.1960 to defendant no. 4, and defendant no. 4, having sold the same to Smt. Kanta Devi and Sanjay Kumar on 19.03.1987, were not interested in defending the suit properly and hence, they seem to have contested the matter in a very casual manner. It is further submitted by him that Section 48 of Transfer Property Act is not attracted to the facts of the present case, in as much as, Smt. Kanta Devi and Sanjay Kumar were not parties to the suit and even otherwise, the subject matter of the sale deed in favour of respondent no. 1 on the one hand and the appellant on the other is different.
12. In view of the aforesaid submissions, according to him, the appellant cannot be made to suffer on account of lapses on the part of the defendant no. 1/respondent no. 1 and hence he is not liable to be evicted in execution of decree dated 20.10.1998. Ld. Counsel for appellant has further sought to raise objections to his eviction in execution of the aforesaid decree on account of the identity of the suit property being different from the property RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.7 of 27 in occupation of the appellant, in as much as, according to him, the respondent no. 1 has failed to establish that new number 10 was allotted to his plot no. 46 and not to plot number 48 of the appellant. Further, according to him, even the site plans filed by respondent no. 1 in the suit were not duly proved by the respondent no. 1 before Ld. Trial Court. He has thus prayed for setting aside of the impugned order dated 08.11.2013 of Ld. Execution Court.
13. On the other hand, it is submitted by Ld. Counsel for the respondent no. 1 that the respondent no. 1 had filed the suit for recovery of possession of the suit property being its absolute owner on the basis of registered sale deed dated 25.03.1960 and the plea of bonafide purchaser of the suit property for consideration vide sale deed dated 25.06.1960 was taken by the predecessor in interest of the appellant i.e. defendant no. 4 in the suit, which was dealt with by Ld. Trial Court and a conclusive finding as to respondent no. 1 being the absolute owner of the suit property was given in the judgment and decree dated 20.10.1998 while declaring predecessor in interest of the appellant as a trespasser.
14. The aforesaid finding of Ld. Trial Court, according to Ld. Counsel for respondent no. 1, has attained finality as no appeal against the judgment and decree dated 20.10.1998 in CS NO. 1292/1989 was preferred. He submits that since the right, if any, of the appellant qua the suit property can't be better than the right of his predecessor in interest i.e. defendant no. 4, the aforesaid finding of Ld. Trial Court, which has already attained finality, cannot be disturbed on the flimsy ground that the appellant is a RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.8 of 27 bonafide purchaser of the suit property for consideration and without notice.
15. Ld. Counsel for the respondent no. 1 has also relied upon the provisions of Section 48 of Transfer of Property Act in terms of which any subsequent interest purported to be created shall be subject to the prior interest created and hence, according to him, it was held by Ld. Trial Court that the sale deed executed by defendant no. 2 in favour of defendant no. 4 i.e. in favour of predecessor in interest of the appellant was incapable of conferring any right on the predecessor in interest of the appellant in the suit property, the same having been executed subsequent to the sale deed dated 25.03.1960 in favour of respondent no. 1. The aforesaid plea, according to Ld. Counsel for respondent no. 1, can thus not be re-agitated by the present appellant before the Execution Court.
16. It is next contended by the Ld. Counsel for the respondent no. 1 that the suit property was first fraudulently transferred to the predecessor in interest of the appellant during the year 1987 i.e. during the course of ongoing trial in the suit and hence, the doctrine of lis pendens, as defined in Section 52 of Transfer of Property Act, is attracted to facts of the present case and appellant is thus not entitled to drive any benefit on the ground of alleged bonafide purchase. Even otherwise, according to him, it is beyond his comprehension as to how the appellant can be considered to be a bonafide purchaser of the suit property without notice as the original sale deed in favour of predecessor in interest of appellant was lying in the original case file. Besides, according to him, the doctrine of constructive RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.9 of 27 notice of the prior registered sale deed in favour of respondent no. 1 also establishes beyond doubt that the appellant had knowledge of title of respondent no. 1 over the suit property.
17. So far as the issue of identity of the suit property is concerned, according to him, the said issue has already been dealt with by Ld. Trial Court in the judgment dated 20.10.1998 and hence, the contention of the appellant that the decree dated 20.10.1998 is not binding on the appellant, the identity of the suit property being different than the property in occupation of the appellant, has been rightly rejected by Ld. Execution Court. The aforesaid finding of Ld. Execution Court, according to him, has also been affirmed by Ld. Predecessor of this Court in his order dated 25.07.2014. He submits that no appeal was preferred by the present appellant against aforesaid finding of Ld. Predecessor of this Court in his order dated 25.07.2014 and it was only respondent no. 1, who had challenged the order dated 25.07.2014 of this Court before Hon'ble High Court of Delhi only to the limited extent that evidence was directed to be taken on the plea of appellant regarding he being a bonafide purchaser of the suit property for value without notice.
18. The concurrent finding of Ld. Execution Court as well as this court as to the identity of the suit property being one and the same in respect of which the appellant is tracing his right to defendant no. 2, according to him, has thus attained finality and the appellant cannot be permitted to re-agitate the same. Ld. Counsel for the respondent no. 1 has thus prayed for dismissal of the present appeal with heavy costs which, according to him, RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.10 of 27 has been filed by the appellant in order to frustrate the execution of judgment and decree dated 20.10.1998 in CS NO. 1292/1989.
19. I have heard the submissions made on behalf of both the parties and have carefully perused the material available on record.
20. Although, several grounds have been taken by the appellant in his appeal to challenge the impugned order dated 08.11.2013, however, during the course of arguments, Ld. Counsel for Appellant has confined his submissions only on two of the grounds- firstly that the property in occupation of the appellant is not the suit property which had allegedly been purchased by the respondent no.1 vide registered sale deed dated 25.03.1960 and secondly, the appellant, being the bonafide purchaser of the suit property for value without notice of any claim or right of respondent no.1 over the same, is not liable to be dispossessed from the suit property.
21. So far as the first of the aforesaid issues is concerned, I find force in the submissions made on behalf of respondent no.1 that the issue as to the identity of the suit property vis-a-vis the property in occupation of the present appellant being one and the same has been finally adjudicated by Ld. Execution Court which finding, despite having been affirmed by Ld. Predecessor of this Court in its judgment dated 25.07.2014, has not been challenged by the appellant before Hon'ble Delhi High Court either by filing any cross-appeal or cross-objections, although the respondent no.1 has challenged the judgment dated 25.07.2014 of this Court before Hon'ble Delhi High Court in FAO No.60/2015 only to a limited extent that the matter was not required to be remanded back to the Ld. Execution Court RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.11 of 27 for taking evidence on the plea of the appellant that he being the bonafide purchaser of the suit property for value without notice was not liable to be dispossessed from the suit property.
22. It is sought to be contended by Ld. Counsel for the appellant that Hon'ble Delhi High Court vide Order dated 18.08.2017 has remanded the matter back to this court for fresh decision on the objections of the appellant and hence, the appellant is entitled to re-agitate the issue as to identity of the suit property vis-a-vis the property in occupation of the appellant before this Court. Although this Court is not in agreement with the aforesaid plea of Ld. Counsel for the appellant, since vide Order dated 18.08.2017, Hon'ble Delhi High Court has merely allowed the appeal filed by respondent no.1, wherein, the respondent no.1 had prayed for setting aside the order dated 25.07.2014 only to the extent this court had remanded the matter back to Ld. Execution Court with a direction to decide the plea of the appellant, regarding he being the bonafide purchaser of the suit property for value without notice, afresh after taking evidence. However, considering the fact that the proceedings from which the present appeal has arisen find their origin in the year 1966, in order to avoid any technical objection and further delay in adjudication of the execution proceedings pending before Ld. Trial Court, this Court has decided to re-examine the aforesaid plea of the appellant on merits.
23. A bare perusal of the impugned Order dated 08.11.2013 of Ld. Execution Court shows that execution court has dealt with the aforesaid plea of the appellant in detail while referring to the judgment and decree RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.12 of 27 dated 20.10.1998 in CS No.1292/89. It has been categorically observed by Ld. Execution Court that although no specific issue as to the identity of the suit property was framed in the aforesaid suit, however, the Court in its judgment dated 20.10.1998 has specifically dealt with an identical plea taken by Predecessor in the interest of the present appellant i.e. by defendant no.4 in her written statement.
24. A bare perusal of the impugned Order dated 08.11.2013 as well as the judgment dated 20.11.1998 in CS No.1292/1989 shows that the defendant no.4 had taken an identical plea in her written statement that the property purchased by her from defendant no.2 vide registered sale deed dated 25.06.1960 and occupied by her was different than the suit property allegedly purchased by respondent no.1/plaintiff vide registered sale deed dated 25.03.1960. Even the defendant no.4 in the aforesaid suit had alleged old municipal number of her property being 48 and the municipal number of the property allegedly purchased by respondent no.1 being 46. While dealing with the aforesaid plea of the defendant no.4 in her written statement, it was held by Ld. Trial Court in judgment dated 20.10.1998 that defendant no.4 had failed to prove the aforesaid fact that the property purchased and occupied by her was different than the property allegedly purchased by respondent no.1.
25. It is significant to note that although the appellant had allegedly purchased the property in question from one Sh. Ramesh Kumar Jain in the year 2007, who, in turn had purchased the same from Sh. Yogesh Kumar in the year 1999. Sh. Yogesh Kumar had allegedly purchased the said property RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.13 of 27 from Sh. Ajay Kumar Goel in the year 1995, who, in turn, had purchased the same from Mrs. Mridula Mittal in the year 1993. Smt. Mridula Mittal had allegedly purchased the said property from Sh. Prem Chand, as an attorney of sh. Jaswant Singh, attorney of Smt. Kanta and Sanjay in the year 1991, however, Smt. Kanta and Sanjay have admittedly purchased the property from defendant no.4 which was allegedly purchased by defendant no.4 from defendant no. 2 vide registered sale deed dated 25.06.1960. Thus, in my considered opinion, it has been rightly held by Ld. Execution Court that the issue as to the identity of the suit property vis-a-vis the property in occupation of the appellant had attained finality and cannot be allowed to be reopened in the execution petition on the basis of objections filed by the persons who are successor-in-interest of the parties to the suit and are claiming their rights through them.
26. A perusal of the impugned order shows that Ld. Execution Court has even proceeded to examine the plea of the appellant on the basis of boundaries shown by the appellant in his objection petition vis-a-vis boundaries shown in the site plan filed by the DH in the suit and has found the same to be identical.
27. Under the aforesaid circumstances, in my considered opinion, there is no error in the order dated 08.11.2013 of Ld. Execution Court on the issue of identity of the suit property vis-a-vis the property in occupation of the present appellant being one and the same.
28. Now, coming to the second objection raised by the appellant that the decree dated 20.10.1998 was not binding upon him, he being the bonafide RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.14 of 27 purchaser for value without notice of any claim or right of respondent no.1. It is significant to note that the part of the suit property had been allegedly purchased by the present appellant from Sh. Ramesh Kumar Jain, who had traced his title from Smt. Kanta and Sanjay, in the year 2007. Smt. Kanta and Sanjay had allegedly purchased the same from defendant no.4 in the suit on 19.03.1987. Perusal of Trial Court Record reveals that the Civil Suit bearing no.1292/1989 was pending between respondent no.1 and the Predecessor-in-interest of the present appellant i.e. defendant no.4 on the date of first transfer of the suit property by defendant no.4 in favour of Smt. Kanta and Sanjay on 19.03.1987.
29. The transfer of suit property by defendant no.4 in CS No.1292/1989 in favour of Smt. Kanta and Sanjay Kumar on 19.03.1987 is thus squarely hit by Provisions of Section 52 of the Transfer of the Property Act, 1882, which incorporates the doctrine of lis pendens. The aforesaid provision though does not render the said transfer as void between defendant no.4 on the one hand and Smt. Kanta and Sanjay Kumar on the other, however, it renders the said transfer subject to the judgment and decree of the Court in the aforesaid suit.
30. Thus, as per the doctrine of lis pendens, as found in Provisions of Section 52 of the Transfer of property Act, 1882, Smt. Kanta Devi and Sanjay Kumar shall be bound the judgment and decree dated 20.10.1998 passed in CS No.1292/1989 so is the appellant including his predecessors in interest. While taking the aforesaid view, I derive support from the following observations of Hon'ble Supreme Court of India in G.T. Girish RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.15 of 27 Vs. Y. Subba Raju (D) by Lrs and Another 2022 SCC OnLine SC 60:
"93. The Doctrine of Lis Pendens is based on the maxim "pendente lite nihil innovetur". This means that pending litigation, nothing new should be introduced. Section 52 of the Transfer of Property Act, 1882 (for short, 'the TP Act'), which incorporates the Doctrine of Lis Pendens, is based on equity and public policy. It pours complete efficacy to the adjudicatory mechanism. This is done by finding that any disposition of property, as described in the Section by a party to the litigation will, in not any way, detract from the finality of the decision rendered by the court. It is clear that it is not based on the ground of Notice as laid down by Lord Craanworth in Bennamy v. Sabine, which has been followed by the Privy Council in the decision in 34 Indian Appeals 102. We may notice the following discussion in this regard in "The Transfer of Property, by Mulla, 12th Edition:
"The rule is, therefore, based not on the doctrine of notice, but on expediency, ie, the necessity for fine adjudication. It is immaterial whether the alienee pendente lite had, or had not, notice of the pending proceeding. This is, of course, no longer the case in England, or in Gujarat and Maharashtra, where the doctrine only affects transactions pendente lite if the lis has been duly registered."
94. It is further important to notice that when a transaction is done, lis pendens or pending a case, the transaction is, as such, not annulled. The transaction is, in other words, not invalidated. In fact, as between the transferor and the transferee, it does not lie in the mouth of the transferor to set up the plea of lis pendens to defeat the disposition of property. Equally, the Principle of Lis Pendens is, not to be confounded with the aspect of good faith or bonafides. In other words, the transferee or the beneficiary of the property, which is disposed RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.16 of 27 of by a party, cannot set up the case that he acted bonafide or in good faith. This enables the court and the parties in a Suit or a proceeding, which otherwise is in conformity with requirements of Section 52, to proceed in the matter on the basis that the adjudication by the court, will not, in any way, be subverted or delayed, when the day of final reckoning arrives.
95. The cardinal and indispensable requirement, which flows both from Section 52 and the principle, it purports to uphold, is that the transfer or dealing of the property, which is the subject matter of the proceeding, is carried out by a party to the proceeding. Section 52 uses the word 'party' twice. It refers to the disability of a party to transfer or otherwise deal with the property, pending adjudication. This embargo is intertwined with the beneficiary of the veto against such transfer, being any other party thereto. In fact, the Special Bench of the Madras High Court in Manjeshwara Krishnaya v. Vasudeva Mallya24, puts the Doctrine of Lis Pendens as an extension of the Doctrine of Res Judicata. Thus, the sine qua non for the Doctrine of Lis Pendens to apply is that the transfer is made or the property is otherwise disposed of by a person, who is a party to the litigation. The Doctrine of Lis Pendens, only subject, however, the transfer or other disposition of property to the final decision that is rendered. The person/party, who finally succeeds in the litigation, can ask the court to ignore any transfer or other disposition of property by any party to the proceeding. This is subject to the condition that transfer or other disposition is made during the pendency of the lis." (Emphasis mine)
31. In view of the aforesaid authoritative pronouncement, it is not longer res integra that a transferee of the suit property during pendency of a suit is not entitled to a plea that he had no notice of the pending litigation or that RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.17 of 27 he was a bonafide purchaser of the suit property for valuable consideration. In view of the authoritative pronouncement of Hon'ble Supreme Court of India in Usha Sinha Vs. Dina Ram (2008) 7SCC 144, the present appellant being a transferee of the transferee from the judgment debtor i.e. defendant no.4 in suit no.1292/1989, is also bound by the aforesaid decree. Thus, the plea of Ld. Counsel for the appellant that the appellant is not bound by the decree dated 12.10.1998, his immediate predecessors not being a party to the suit no.1292/1989, is not tenable.
32. At this stage, it is significant to refer to the provisions of Order 21 Rule 102 of CPC which renders Rule 98 and 100 of Order 21 not applicable to the resistance or obstruction in execution of a decree for possession of immovable property by a transferee pendente-lite. It is submitted by Ld. Counsel for the appellant that no lis was pending in respect of the suit property as on the date of purchase of the same by the appellant i.e. on 04.09.2003. I do not find any force in the aforesaid submission made on behalf of the appellant. A bare perusal of the explanation appended to Section 52 of the Transfer of Property Act 1882 shows that pendency of the suit/proceedings within the meaning of Section 52 of the Transfer of Property Act shall be deemed to commence from the date of the presentation of the plaint in the Court of Competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained.
33. Thus, in my considered opinion, in view of the aforesaid explanation, RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.18 of 27 the proceedings in CS No.1292/1989 shall be deemed to have commenced on the date of the presentation of the plaint in the aforesaid suit i.e. on 15.02.1966 and the same are still continuing since the final decree dated 20.10.1998 passed therein has not been satisfied till date. The transfer by Smt. Kanta and Sanjay in favour of the predecessors of the present appellant after having purchased the same from the party to the aforesaid suit i.e. from defendant no.4 during pendency of the same and subsequent transfers including transfers in favour of present appellant are thus clearly hit by the Provisions of Section 52 of the Transfer of Property Act and consequentially by the Provisions of Order 21 Rule 102 CPC and hence, the plea of bonafide purchase of the suit property by the appellant for valuable consideration without notice of pending litigation or of any claim or right of respondent no.1 qua the suit property is not available to the appellant. The aforesaid plea of the appellant is thus liable to be rejected. While taking the aforesaid view, I derive support from the following observations of Hon'ble Supreme Court in Usha Sinha Vs. Dina Ram (2008) 7SCC 144:
"13. Before we consider the legality or otherwise of the decision impugned in the present appeal, it may be appropriate if we note the relevant provisions of law. Rules 97 to 106 of Order 21 of the Code deal with "resistance or obstruction to delivery of possession to decree-holder or purchaser". Rule 97 enables the decree-holder or auction-purchaser to complain to executing court if he/she is resisted or obstructed in obtaining possession of such property by "any person". The court on receipt of such application will proceed to adjudicate it.RCA DJ No.216/17
Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.19 of 27
14. Rule 101 requires the court to make full-fledged inquiry and determine all questions relating to right, title and interest in the property arising between the parties to the proceeding or their representatives. The court will then pass an order upon such adjudication (Rule 98).
15. Rule 99 permits any person other than the judgment-debtor who is dispossessed by the decree-holder or auction-purchaser to make an application to executing court complaining such dispossession. The court, on receipt of such application, will proceed to adjudicate it (Rule 100).
16. Rule 103 declares that an order made under Rule 98 or Rule 100 shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.
17. Rule 102 clarifies that Rules 98 and 100 of Order 21 of the Code do not apply to transferee pendente lite. That Rule is relevant and material and may be quoted in extenso:
"102. Rules not applicable to transferee pendente lite.-- 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."
Bare reading of the Rule makes it clear that it is based on justice, equity and good conscience. A transferee from a judgment-debtor is presumed to be aware of the proceedings before a court of law. He should be careful before he purchases the property which is the subject-matter of litigation. It recognises the doctrine of lis pendens recognised by Section 52 of the Transfer of Property Act, 1882 [ "52. Transfer of property pending suit relating thereto.--During the RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.20 of 27 pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."] . Rule 102 of Order 21 of the Code thus takes into account the ground reality and refuses to extend helping hand to purchasers of property in respect of which litigation is pending. If unfair, inequitable or undeserved protection is afforded to a transferee pendente lite, a decree-holder will never be able to realise the fruits of his decree. Every time the decree-holder seeks a direction from a court to execute the decree, the judgment-debtor or his transferee will transfer the property and the new transferee will offer resistance or cause obstruction. To avoid such a situation, the Rule has been enacted.
18. Before one-and-half century, in Bellamy v. Sabine [(1857) 1 De G & J 566 : 44 ER 842] , Lord Cranworth, L.C. proclaimed that where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind require that the decision of the RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.21 of 27 court in the suit shall be binding not only on the litigating parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end.
19. Keeping in view the avowed object, the expression "transferee from the judgment-debtor" has been interpreted to mean the "transferee from a transferee from the judgment- debtor" (vide Vijayalakshmi Leather Industries (P) Ltd. v. K. Narayanan [AIR 2003 Mad 203] ).
20. In Vijayalakshmi Leather Industries [AIR 2003 Mad 203] it was urged that the provisions of Rules 98 and 100 of Order 21 of the Code had limited application to the transferee of the judgment-debtor and could not extend to "a chain of transactions" where the transferee of the judgment-debtor had transferred his interest.
21. Referring to statutory provisions and case-law, the Court negatived the contention, stating : (Vijayalakshmi case [AIR 2003 Mad 203] , AIR p. 206, para 13) "13. If such contention of the learned Senior Counsel for the appellant is to be accepted, then we are closing our eyes regarding the intention of the statute. It is obvious while interpreting the provisions of the statute, the court must give due weight to the intention of the statute in order to give effect to the provisions. If any narrow interpretation is given and thereby the purpose of the statute is being defeated, the courts must be careful to avoid such interpretations. If we look at Section 52 of the Transfer of Property Act and Rule 102 of Order 21 CPC, it is very clear that the intention of Parliament with which the statute had been enacted is that the rights of one of the parties to the proceeding pending before the court RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.22 of 27 cannot be prejudiced or taken away or adversely affected by the action of the other party to the same proceeding. In the absence of such restriction one party to the proceeding, just to prejudice the other party, may dispose of the properties which is the subject-matter of the litigation or put any third party in possession and keep away from the court. By such actions of the party to the litigation the other party will be put to more hardship and only to avoid such prejudicial acts by a party to the litigation these provisions are in existence. When in spite of such statutory restrictions, for the transfer of the properties, which are the subject-matter of litigation by a party to the proceeding, the courts are duty-bound to give effect to the provisions of the statute."
22. The above observations, in our opinion, lay down correct proposition of law.
23. It is thus settled law that a purchaser of suit property during the pendency of litigation has no right to resist or obstruct execution of decree passed by a competent court. The doctrine of "lis pendens" prohibits a party from dealing with the property which is the subject-matter of suit. "Lis pendens"
itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit. Rule 102, therefore, clarifies that there should not be resistance or obstruction by a transferee pendente lite. It declares that if the resistance is caused or obstruction is offered by a transferee pendente lite of the judgment-debtor, he cannot seek benefit of Rules 98 or 100 of Order 21.
24. In Silverline Forum (P) Ltd. v. Rajiv Trust [(1998) 3 SCC 723] this Court held that where the resistance is caused or obstruction is offered by a transferee pendente lite, the scope of adjudication is confined to a question whether he was a transferee during the pendency of a suit in which the decree was passed. Once the finding is in the affirmative, the RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.23 of 27 executing court must hold that he had no right to resist or obstruct and such person cannot seek protection from the executing court. The Court stated : (SCC pp. 727-28, para 10) "10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions 'arising between the parties to a proceeding on an application under Rule 97 or Rule 99' shall be determined by the executing court, if such questions are 'relevant to the adjudication of the application'. A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act."
(emphasis supplied) (See also Sarvinder Singh v. Dalip Singh [(1996) 5 SCC 539] .)
25. We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum [(1998) 3 SCC 723] . In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment-debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree.
RCA DJ No.216/17Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.24 of 27 Resistance at the instance of transferee of a judgment-debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.
26. 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 cannot place reliance either on Rule 98 or Rule 100 of Order 21.
27. So far as the present case is concerned, the facts are no more in dispute. As already noted earlier, Title Suit No. 140 of 1999 was instituted by the respondent-plaintiff on 10-4-1999. Thus, the litigation was pending in respect of the property and the matter was sub judice. The appellant thereafter purchased the property from Original Defendants 4 and 5 by a registered sale deed on 15-2-2000 i.e. during the pendency of the suit. It is also not in dispute that ex parte decree came to be passed against the defendants on 24-5-2001. In the situation, in our considered opinion, the doctrine of lis pendens would apply to the transaction in question, and the High Court was wholly right in holding that the case was covered by Rule 102 of Order 21 of the Code. The appellant could not seek protection of pendency of suit instituted by her. The executing court was not justified in granting stay of execution proceedings. The High Court was, hence, right in setting aside the order of the executing court.
28. Rule 29 of Order 21 of the Code deals with cases wherein a suit has been instituted by the judgment-debtor against the decree-holder and has no relevance to cases of lis pendens wherein transfer of property has been effected by the judgment-debtor to a third party during the pendency of RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.25 of 27 proceedings.
29. The High Court, in our opinion, rightly held that the appellant could not be said to be a "stranger" to the suit inasmuch as she was claiming right, title and interest through Defendants 4 and 5 against whom the suit was pending. She must, therefore, be presumed to be aware of the litigation which was before a competent court in the form of Title Suit No. 140 of 1999 instituted by the present respondent against the predecessor of the appellant.
30. As held in Bellamy [(1857) 1 De G & J 566 : 44 ER 842] , the fact that the purchaser of the property during the pendency of the proceedings had no knowledge about the suit, appeal or other proceeding is wholly immaterial and he/she cannot resist execution of decree on that ground.
31. As observed in Silverline Forum [(1998) 3 SCC 723] a limited inquiry in such cases is whether the transferee is claiming his right through the judgment-debtor.
32. In our judgment, the High Court was also right in observing that if the appellant succeeds in the suit and decree is passed in her favour, she can take appropriate proceedings in accordance with law and apply for restitution. That, however, does not preclude the decree-holder from executing the decree obtained by him. Since the appellant is a purchaser pendente lite and as she has no right to offer resistance or cause obstruction and as her rights have not been crystallised in a decree, Rule 102 of Order 21 of the Code comes into operation. Hence, she cannot resist execution during the pendency of the suit instituted by her. The order passed by the High Court, therefore, cannot be said to be illegal, unlawful or otherwise contrary to law."(Emphasis mine)
34. In view of the aforesaid discussions, the present appeal of the RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.26 of 27 appellant is bound to fail. The same is accordingly dismissed and order dated 08.11.2013 of Ld. Execution Court is upheld. Considering the fact that the appellant has obstructed the execution of the decree dated 20.10.1998 for a considerable period of time by raising frivolous objections, he is burdened with the cost of Rs. 20,000/- to be paid by him to the respondent no. 1.
35. Ordered accordingly.
Announced in the open court on this 18th day of January, 2023. This judgment consists of 27 number of signed pages.
ARUN Digitally signed by ARUN KUMAR GARG KUMAR Date: 2023.01.18 GARG 17:04:09 +05'30' (ARUN KUMAR GARG) Additional District Judge-05, Central District, Tis Hazari Courts, Delhi. RCA DJ No.216/17 Naresh Kumar Jain Vs. R.L.Kapoor Judgment dated 18.01.2023 Page No.27 of 27