Gujarat High Court
K. Kakubhai C/O Bhartiben M Upadhyaya vs Chintan Chandrakant Maniar on 6 August, 2025
NEUTRAL CITATION
C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8132 of 2013
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2014
In R/SPECIAL CIVIL APPLICATION NO. 8132 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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K. KAKUBHAI C/O BHARTIBEN M UPADHYAYA
Versus
CHINTAN CHANDRAKANT MANIAR & ORS.
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Appearance:
MR VISHAL T. PATEL(6518) for the Petitioner(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 2
MS MEGHA JANI(1028) for the Respondent(s) No. 1
RULE UNSERVED for the Respondent(s) No. 2.1,2.2,2.3,2.4,2.5,2.6,2.7
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 06/08/2025
ORAL JUDGMENT
1. The present application is filed under Article 227 of the Constitution of India seeking the following relief:-
"a) The Honourable Court may be pleased to quash and set-aside the Order passed below Exh. 47 dated 04-04-2013, Annexure-H to this Petition by the Learned Judge, Court No.17, City Civil Court, Ahmedabad in Darkhast Proceedings No.767 of 2001 in the interest of justice.
b) Pending admission, hearing and final disposal of this Special Civil Application, this Hon'ble Court may be pleased to stay execution, implementation and operation of the impugned Order passed below Exh. 47 dated 04-04-2013, Annexure-H to this Petition by the Learned Judge, Court No. 17, City Civil Court, Ahmedabad in Darkhast Proceedings No.767 of 2001 in the interest of justice.
C) Cost of this petition be provided for;Page 1 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025
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d) Any other and further relief which the Honourable Court may deem just, fit and proper may please be granted;"
2. The short facts which require to be discussed to resolve the controversy germane to the application are that the petitioner herein is a decree-holder who has filed Execution Application No. 767 of 2001.
2.1. Pending such execution, the original judgment-debtor executed a registered sale deed in favour of respondent No. 1, who filed the impugned application to be joined in the execution, which was allowed by the Trial Court vide its impugned order.
2.2. The decree-holder, being aggrieved and dissatisfied by the impugned order, has preferred the present application.
3. SUBMISSIONS OF THE PETITIONER DECREE-HOLDER 3.1. Learned Advocate Mr. Vishal T. Patel appearing for the petitioner would submit that the Trial Court has committed a serious error of law by allowing the impugned application filed at the instance of respondent No. 1 - a third party, who could not have been joined in the execution.
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NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined 3.2. It is submitted that when the judgment-debtor, knowing fully well that there is a consent decree whereby he was required to execute the sale deed in favour of the petitioner decree-holder, has executed a registered sale deed in favour of a third party, such third party would be neither a necessary nor a proper party to be joined in the execution proceedings.
3.3. Learned Advocate Mr. Patel would further submit that as per the provisions of Order 21, Rule 102 of the Civil Procedure Code, 1908 (hereinafter referred to as 'CPC') a transferee pendente lite who purchased the suit property, that too after the passing of the decree, has no right to obstruct and/or resist the decree and no right to join in the execution. 3.4. Learned Advocate Mr. Patel would submit that the joining of a transferee pendente lite in the execution would be nothing but an attempt to delay the execution of the decree, and thereby also, he should not be allowed to be joined in the execution.
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NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined 3.5. Learned Advocate Mr. Patel would submit that as per the settled legal position of law, such transferee pendente lite would not be considered a valid title holder of the suit property when executed sale deed either during the pendency of the suit or after the passing of the decree against the judgment-debtor.
3.6. Learned Advocate Mr. Patel would submit that the Trial Court has wrongly relied upon the decision of the Honourable Supreme Court of India in the case Amit Kumar Shaw and Another vs. Farida Khatoon and Another reported in (2005) 11 SCC 403, inasmuch as the issue before the Honourable Supreme Court in the case of Amit Kumar Shah (supra) was the joining of a transferee pendente lite during the pendency of an appeal, unlike in execution proceedings. 3.7. Learned Advocate Mr. Patel would submit that the provisions of Order 22, Rule 10 of the CPC, Order 1, Rule 10 of the CPC read with Section 52 of the Transfer of Property Act, would not apply in execution proceedings. Page 4 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025
NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined 3.8. Learned Advocate Mr. Patel would respectfully submit that the Trial Court has, in a cavalier manner, without appreciating the legal position of law, in a routine manner granted the impugned application, and thereby committed a gross error of law which requires to be corrected by this Court while exercising its power under Article 227 of the Constitution of India.
3.9. Learned Advocate Mr. Patel would respectfully submit that as per various decisions of the Honourable Supreme Court as well as this Court, a transferee pendente lite like respondent No. 1 cannot be allowed to join in the execution proceedings as he has no right to resist or obstruct the decree which is sought to be executed by way of execution. 3.10. To buttress his argument, learned Advocate Mr. Patel would rely upon the decisions
(i) Usha Sinha Vs. Dina Ram and Others reported in (2008) 7 SCC 144;
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(ii) Valjibhai Arjanbhai Korat vs. Kishorbhai Parbatbhai Thesiya and Ors reported in AIROnline 2023 GUJ 2128
(iii) Dilip Kumar vs. Vijay Bahadur Singh and Ors reported in AIR 2009 Madhya Pradesh 165.
3.11. Making the above submissions, Learned Advocate Mr. Patel would request this Court to allow the present application.
4. SUBMISSIONS OF RESPONDENT NO. 1 - THIRD PARTY 4.1. Learned Advocate Ms. Megha Jani appearing for respondent no.1 - third party would submit that there is no gross error of law, much less any jurisdictional error, committed by the Executing Court while allowing the impugned application filed by respondent No. 1 - the third party.
4.2. Learned Advocate Ms. Jani would respectfully submit that respondent No. 1, having purchased the suit property pending execution of the decree, should be considered a transferee pendente lite required to be joined in the execution proceedings.
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NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined 4.3. Learned Advocate Ms. Jani would further submit that as per Section 52 of the Transfer of Property Act, read with Order 1 Rule 10 of the CPC and so also, Order 22, Rule 10 of the CPC, any such transferee pendente lite is required to be joined in the execution petition.
4.4. Learned Advocate Ms. Jani would further submit that the issue germane in the matter is squarely covered by the decision of the Honourable Supreme Court in the case of Amit Kumar Shaw (supra) and as such, there is no merit in the present writ application, which may not be entertained by this Court having limited jurisdiction under Article 227 of the Constitution of India to interfere with the order passed by the Executing Court.
4.5. Learned Advocate Ms. Jani would submit that apart from Amit Kumar Shah (supra), as per various decisions of the Honourable Supreme Court, , interpreting the aforesaid provisions of law, it is held that a transferee pendente lite is required to be joined in the suit or proceeding, which includes execution proceedings. It is submitted that the judgments Page 7 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined which are relied upon by Learned Advocate Mr. Patel would not be applicable to the facts of the case; rather, they deal with an issue which is yet to come, as the execution proceedings have not even reached the stage of Order 21, Rule 34 of the CPC.
4.6. Learned Advocate Ms. Jani would respectfully submit that the decision of this Court in the case of Valjibhai (supra) is distinguishable on the facts of that case, inasmuch as apart from an application to be joined in execution proceedings filed by the transferee pendente lite, he had also raised obstruction and resistance against the execution of the decree and in light of these peculiar facts and circumstances of the case, when the Executing Court rejected all the attempts made by the transferee pendente lite to resist the decree, this Court, while exercising its jurisdiction under Article 227 of the Constitution of India, did not disturb such order passed by the Executing Court.
4.7. To buttress her argument, Learned Advocate Ms. Jani would rely upon the decisions of Amit Kumar Shah (supra), Page 8 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined and Devendra Kumar Sarewgee and Other vs. Purbanchal Estates (P) LTD and Others reported in (2006) 9 SCC 199, Yogesh Goyanka vs. Govind and Others reported in (2024) 7 SCC 524 and Thomson Press (India) Limited vs. Nanak Builders and Investors Private Limited and Others reported in (2013) 5 SCC 397 and Khemchand Shankar Chaudhari v. Vishnu Hari Patil, reported in (1983) 1 SCC 18.
5. Heard the earned Advocates appearing for the respective parties at length. No other and further submissions are made.
6. The short but interesting question that falls for my consideration is, Whether a transferee pendente lite can be joined in the execution proceedings or not?.
7. ANALYSIS
8. It remains undisputed that an agreement to sell was executed by respondent No. 2 and others in relation to the suit property in favour of petitioner, and due to a dispute between the parties, Regular Civil Suit No. 4469 of 1996 came to be Page 9 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined filed by the petitioner against respondent No. 2 and others seeking specific performance of the said agreement to sell.
9. It appears that during the pendency of the suit, a compromise arrived between the parties to the suit, whereby a consent decree was passed by the Trial Court on 24th July 1999. Thereafter, an Execution Application No. 767 of 2001 appears to have been instituted by the petitioner against the judgment-debtor.
10. It further appears that during the pendency of the execution application, the judgment-debtor executed a registered sale deed on 13.08.2009 in favour of respondent No.
1. On the strength of such registered sale deed, respondent No. 1 has filed the impugned application below Exhibit 47 on 09.04.2010 in the aforesaid execution application. As noted hereinabove, the same was allowed by the Executing Court relying upon the decision of the Honourable Supreme Court in the case of Amit Kumar Shah and Others (supra). Page 10 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025
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11. Before adverting to and answering the issue germane in the present application, first of all, I would like to refer the relevant provisions of law, i.e., Order 1, Rule 10 of the CPC, Order 22, Rule 10 of the CPC, and Section 52 of the Transfer of Property Act, which read as under:
ORDER 1 RULE 10 OF CPC
10. Suit in name of wrong plaintiff.--(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may stirke out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended--Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copes of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
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NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined ORDER 22 RULE 10 OF CPC
10. Procedure in case of assignment before final Order in suit (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1). SECTION 52 OF TRANSFER OF PROPERTY ACT
52. Transfer of property pending suit relating thereto.-- During the 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 proceedings which is not collusive and in which any right to immoveable 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.
12. A bare reading of the aforesaid provisions would indicate that respondent No. 1, having purchased the suit property pending the execution proceedings, would surely be considered Page 12 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined a transferee pendente lite. Once a third party purchases the subject matter of the suit property, either pending the suit or the execution proceedings as the case may be, he would step into the shoes of the original owner from whom he purchased the suit property; thereby, he will be treated as a transferee pendente lite.
13. The Honourable Supreme Court of India in the case of Amit Kumar Shah (supra), in clear terms, held that a transferee is not entitled, as of right, to be made a party to the suit, though the Court has the discretion to make him a party. Having noticed above referred provisions of law, the Honourable Supreme Court in the case of Amit Kumar Shah (supra) held thus:-
"13. In this connection, the provisions of Section 52 of the Transfer of Property Act, 1882 which has been extracted above may be noted.
14. An alienee pendente lite is bound by the final decree that may be passed in the suit. Such an alienee can be brought on record both under this rule as also under Order 1 Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed.
15. Section 52 of the Transfer of Property Act is an expression of the principle "pending a litigation nothing new should be introduced". It provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, Page 13 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined can alienate or otherwise deal with such property so as to affect his appointment. This section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the pendency of the suit. In order to constitute a lis pendens, the following elements must be present:-
1. There must be a suit or proceeding pending in a court of competent jurisdiction.
2. The suit or proceeding must not be collusive.
3. The litigation must be one in which right to immovable property is directly and specifically in question.
4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation.
5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order.
16. The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff.
Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendente lite of an interest in immovable property is a representative-in- interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case." (emphasis supplied) Page 14 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined
14. Likewise, in the recent past, the Honourable Supreme Court in the case of Yogesh Goenka (supra) had an occasion to revisit such an issue again, wherein it held thus:-
"16. The fulcrum of the dispute herein concerns the impleadment of a transferee pendente lite who undisputedly had notice of the pending litigation. At the outset, it appears pertinent to reiterate the settled position that the doctrine of lis pendens as provided under Section 52 of the Act does not render all transfers pendente lite to be void ab initio, it merely renders rights arising from such transfers as subservient to the rights of the parties to the pending litigation and subject to any direction that the Court may pass thereunder.
17. Therefore, the mere fact that RSD was executed during the pendency of the underlying suit does not automatically render it null and void. On this ground alone, we find the impugned order to be wholly erroneous as it employs Section 52 of the Act to nullify RSD and on that basis, concludes that the impleadment application is untenable. Contrary to this approach of the High Court, the law on impleadment of subsequent transferees, as established by this Court has evolved in a manner that liberally enables subsequent transferees to protect their interests in recognition of the possibility that the transferor pendente lite may not defend the title or may collude with the plaintiff therein (see the decision of this Court in Amit Kumar Shaw v. Farida Khatoon [Amit Kumar Shaw v. Farida Khatoon, (2005) 11 SCC 403] & A. Nawab John v. V.N. Subramaniyam [A. Nawab John v. V.N. Subramaniyam, (2012) 7 SCC 738 : (2012) 4 SCC (Civ) 324] ).
18. Similarly, we also find fault with the order of the ADJ and its misplaced reliance on Bibi Zubaida [Bibi Zubaida Khatoon v. Nabi Hassan Saheb, (2004) 1 SCC 191] . The only principle emerging from the judgment of this Court in Bibi Zubaida [Bibi Zubaida Khatoon v. Nabi Hassan Saheb, (2004) 1 SCC 191] is that transferees pendente lite cannot seek impleadment as a matter of right and to that extent, we agree with the ADJ. However, Bibi Zubaida [Bibi Zubaida Khatoon v. Nabi Hassan Saheb, (2004) 1 SCC 191] does not place a bar on impleadment of transferees who purchase property without seeking leave of the Court. The decision of the Court in Bibi Zubaida [Bibi Zubaida Khatoon v. Nabi Hassan Saheb, (2004) 1 SCC 191] turns on its own facts; the Court rejected the application for joinder therein noting that the underlying suit was pending since 1983 and upheld the finding of the trial court that the subsequent purchaser was not bona fide and Page 15 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined attempted to complicate and delay the underlying suit. Therefore, the judgment in Bibi Zubaida [Bibi Zubaida Khatoon v. Nabi Hassan Saheb, (2004) 1 SCC 191], being distinguishable on facts, does not assist the respondents herein."
(emphasis supplied)
15. Likewise, in the case of Thomson Press (India) Limited (supra), the Supreme Court also had an occasion to deal with such an issue of joining a transferee pendente lite in the suit proceedings, wherein in paras 26, 33, 37, and 44 it observed and held thus:-
"26. It would also be worth discussing some of the relevant laws in order to appreciate the case on hand. Section 52 of the Transfer of Property Act speaks about the doctrine of lis pendens. Section 52 reads as under:
"52. Transfer of property pending suit relating thereto.--During the 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 the 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."Page 16 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025
NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation.
33. At this juncture, we would also like to refer to Section 19 of the Specific Relief Act which reads as under:
"19. Relief against parties and persons claiming under them by subsequent title.--Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against--
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;
(c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;
(d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;
(e) when the promoters of a company have, before its incorporation entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company:
Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract."
From the bare reading of the aforesaid provision, it is manifest that a contract for specific performance may be enforced against the parties to the contract and the persons mentioned in the said section. Clause (b) of Section 19 makes it very clear that a suit for specific performance cannot be enforced against a person who is a transferee from the vendor for valuable Page 17 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined consideration and without notice of the original contract which is sought to be enforced in the suit.
37. Taking into consideration all these facts, we have no hesitation in holding that the appellant entered into a clandestine transaction with the defendant Sawhneys and got the property transferred in their favour. Hence the appellant M/s Thomson Press cannot be held to be a bona fide purchaser, without notice.
44. Having regard to the law discussed hereinabove and in the facts and circumstances of the case and also for the ends of justice the appellant is to be added as party-defendant in the suit. The appeal is, accordingly, allowed and the impugned orders passed by the High Court are set aside."
(emphasis supplied)
16. It would also be apposite to place reliance upon the observations made by the Honourable Supreme Court in the following decisions, which observed as regards the impleadment of a transferee pendente lite per se in execution proceedings, which is the issue germane at hand.
17.1 In the case of Devendra Kumar (supra), wherein it was observed as under:-
"11. This Court after detailed consideration of the case-law in Raj Kumar v. Sardari Lal [(2004) 2 SCC 601] has held that the transferee pendente lite is treated in the eye of the law as a representative-in-interest of the judgment-debtor and bound by the decree passed against the judgment-debtor. In case of an assignment, creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 CPC confers a discretion on the court hearing the suit to grant leave to the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing on a lis pendens transferee on record is not as of right but in the discretion of the court.
12. To the similar effect is the judgment of this Court in Amit Kumar Shaw v. Farida Khatoon [JT (2005) 5 SC 20 : (2005) 11 SCC 403] . It has been observed as follows: (SCC p. 411) Page 18 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined "The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject- matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, whether the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party; under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case."
13. In view of the law laid down by this Court in the aforesaid two judgments, we are unable to find any fault with the view taken by the High Court. This apart the High Court has already impleaded Respondent 1 as a party-respondent in the proceedings in the same suit arising from the determination of mesne profits. If Respondent 1 is to be impleaded as a party-respondent in the execution petition relating to the mesne profits we find no reason not to implead it as a party-petitioner in the execution of the decree for ejectment."
(emphasis supplied) 17.2 In another one, in the case of Khemchand Shankar Choudhari (supra) also, the Honourable Supreme Court, having interpreted the provisions of Section 52 of the Transfer of Page 19 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined Property Act read with Order 22, Rule 10 of the CPC, allowed the transferee pendente lite to be joined in the execution proceedings, wherein in paras 1, 6, and 7, it observed and held as under:-
"1. The short question involved in these appeals by special leave is whether the transferees during the pendency of a suit for partition of parts of an estate assessed to payment of land revenue to the Government which is the subject-matter of the suit have locus standi to appear before the Revenue Authorities in proceedings under Section 54 of the Code of Civil Procedure and ask for an equitable partition of the lands even though they had not been impleaded as parties to the suit in the civil court.
6. Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject-matter of a suit from any of the parties to the suit will be bound insofar as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an Official Receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an Official Receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the court to be impleaded as parties they cannot be turned out. The Collector who has to effect partition of an estate under Section 54 of the Code of Civil Procedure has no doubt to divide it in accordance with the decree sent to him. But if a party to such a decree dies leaving some heirs about whose interest there is no dispute should he fold Page 20 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined up his hands and return the papers to the civil court? He need not do so. He may proceed to allot the share of the deceased party to his heirs. Similarly he may, when there is no dispute, allot the share of a deceased party in favour of his legatees. In the case of insolvency of a party, the Official Receiver may be allotted the share of the insolvent. In the case of transferees pendente lite also, if there is no dispute, the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject- matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of Section 54 of the Code of Civil Procedure advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the civil court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition taking into consideration the interests of all concerned including those on whom any interest in the subject- matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out "in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares".
7. In view of the foregoing, the orders of the High Court, the State Government and the Commissioner holding that the appellants had no locus standi to ask the Collector to effect an equitable partition have got to be set aside and they are accordingly set aside. The partition effected by the Collector is also set aside." (emphasis supplied)
17. A conjoint reading of the aforesaid decisions and position of law which emerges out of the same would clearly indicate that a transferee pendente lite can be joined in the suit or proceedings, including execution proceedings, albeit not as a matter of right, but it is in the discretion of the court. When Page 21 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined such positive discretion was exercised by the Trial Court while passing the impugned order, it can be gainsaid that it is without jurisdiction. There is as such no perversity while passing the impugned order.
18. According to my view, there is no bar under the law that in no given case, the transferee pendente lite can be joined in the execution proceedings. There is no absolute bar under law, at least Learned Advocate Mr. Patel would not during course of hearing in a position to show it to this Court.
19. So far as the decisions canvassed by Learned Advocate Mr. Patel are concerned, as such, they are not applicable to the issue germane in the matter. Nonetheless, I would like to deal each one of them as under:-
19.1. In the case of Usha Sinha (supra), the Honourable Supreme Court had an occasion to deal with the right of a transferee pendente lite who purchased the suit property during the pendency of the suit, wherein the suit was decreed against the original owner. The right of the transferee pendente lite Page 22 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined vis-à-vis the execution of the decree sought to be executed was the issue, inasmuch as subsequent to the execution of the sale deed, he filed a substantive suit and objected to the execution of the decree. In light of that peculiar facts, the Honourable Supreme Court, considering provisions of Rules 97 to 106 of Order 21 of the CPC, turned down the objections of the transferee pendente lite, which is not a similar case here.
19.2. According to this Court, what was discussed and upheld by the Honourable Supreme Court in the case of Usha Sinha (supra) was that a transferee pendente lite has no right to object/resist/obstruct to the decree as barred under Rule 102 of Order 21 of the CPC.
19.3. Nonetheless, the issue was never germane before the Supreme Court as to whether the transferee pendente lite can be joined in the execution proceedings or not.
20. So far as the decision of the coordinate Bench of this Court in the case of Valjibhai (supra) is concerned, it is true that out of the three sets of orders passed by the Executing Page 23 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined Court while rejecting each application filed by the transferee pendente lite, one of which was an application to be joined in the execution proceedings. The coordinate Bench of this Court had not entertained the plea of the transferee pendente lite by rejecting all such applications, having confirmed the orders passed by the Executing Court.
20.1. To better appreciate the controversy which was so germane in the case of Valjibhai (supra), the relevant facts and observations of the coordinate Bench of this Court need reproduction, which are as under:-
"5.2. Since respondent No.2 did not satisfy judgment and decree passed in Special Civil Suit, respondent No.1 in order to get judgment and decree executed in his favour filed Execution Application No.4 of 2011 before the competent Court at Dhoraji. In this proceedings, decree holder i.e. respondent No.1 filed application Exh.49 under Order 21 Rule 96,97, 98 and 104 for removal of obstruction and to get decree executed. Vide order dated 07.12.2017, competent Court at Dhoraji passed order in favour of judgment holder. That order has been challenged by the present petitioner claiming that he is not bound by the judgment and decree passed in Special Civil Suit as he is having separate and independent right in the suit land. Another fact which is required to be noticed is that after passing judgment and decree dated 30.09.2011 in Special Civil Suit, respondent No.2 instead of obeying judgment and decree executed registered sale deed dated 31.01.2012 qua suit land in favour of the petitioner i.e. Valjibhai Arjanbhai Korat.
5.3. In Darkshat proceedings as order was passed below Exh.49 for removal of obstruction, the petitioner - Valjibhai Arjanbhai Korat moved application Exh.90 to join him as party in the execution proceedings. Thereafter, he again moved application Exh.91 under Page 24 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined Order 21 Rule 102 seeking relief not to take away his possession of the suit land and application Exh.93 filed under Order 21 Rule 29 of CPC to stay the proceedings of execution. By even date separate orders, three applications are rejected by the competent Civil Court. Being aggrieved and dissatisfied with the order passed below Exh.90, Exh.91 and Exh.93 in Execution proceedings, the petitioner filed Writ Petition No.8170 of 2018. Whereas, order passed below Exh.49 has been challenged by way of Writ Petition No.1386 of 2018.
18. At this stage, at the cost of repetition, it is to be noted that in the present case even as per the case of the petitioner, he has purchased suit land after judgment and decree is passed in Special Civil Suit in favour of respondent No.1.
19. It is clear case where the petitioner is not foreign to the judgment and decree passed in Special Civil Suit. He has stepped in the shoes of judgment debtor. He has no better right, title and interest than judgment debtor and as such it is clear that he is bound by decree. Application of Order 21 Rule 98 as well as Order
21 Rule 102 of CPC makes abundantly and explicitly clear that transferee pendente lite suit or execution proceedings cannot claim better title or independent title than judgment debtor. He has no right to offer resistance or obstruction to the judgment and decree sought to be executed in execution proceedings.
25. On perusal of impugned order, it appears that the petitioner has asked relief for joining him as party defendant. The petitioner cannot be joined as party defendant in execution as he has no independent right in the suit land. He is bound by decree operating against judgment debtor. Application under Order 21 Rule 102 in fact is not helping the petitioner to get any relief. Scope of Order 21 Rule 102 is discussed herein above and any mischief therein is favouring judgment holder. Another application under Order 21 Rule 29 of CPC to claim that Executing Court was required to stay proceedings as one suit is pending between judgment holder and the petitioner. Reading of Order 21 Rule 29 of CPC is totally misconceived. In view of Order 21 Rule 29 of CPC, the Court may stay execution of decree in execution proceedings provided that suit is pending between judgment debtor and judgment holder. However, that proposition is not applicable to the present case since the petitioner has no independent right to resist or obstruct possession of immovable property as he is transferee pendente lite and bound by decree. The petitioner cannot claim that resistance is to be adjudicated in view of Order 21 Rule 97 of CPC, the application Exh.46 in Execution Proceedings filed by the judgment holder has rightly been decided by the Court below." (emphasis supplied) Page 25 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined 20.2. So, it appears from the aforesaid peculiar facts that the transferee pendente lite, having been faced with the execution proceedings which reached up to the stage of taking possession of the suit property, at that stage, the transferee pendente lite appeared before the Executing Court having raised obstruction and resistance to the decree passed against his predecessor.
20.3. At that stage, in light of the provisions of Order 21, Rule 102 of the CPC and as per the settled legal position of law, the Executing Court not only rejected such resistance/obstruction application but also simply rejected the application to be joined in the execution proceedings and so also for a stay of the execution proceedings. 20.4. In light of such peculiar facts and circumstances of the case, when the Executing Court did not exercise its discretion in favour of the applicant, the coordinate Bench of this Court did not disturb the said impugned orders passed by the Executing Court while exercising its supervisory jurisdiction under Article 227 of the Constitution of India. Page 26 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025
NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined 20.5. Nonetheless, this judgment cannot be read in isolation whereby it can be concluded that a transferee pendente lite can never be joined in an execution proceeding. 20.6. This Court is conscious of the fact that any law laid down by a coordinate Bench of this Court is binding on this Court, and if I do not agree with such a view, judicial propriety demands that the matter be referred to the Division Bench.
20.7. Having so observed hereinabove, the decision in the case of Valjibhai (supra) passed by a coordinate Bench of this Court was passed on the peculiar facts of that particular case, wherein there is no absolute proposition of law laid down that a transferee pendente lite can never be joined in execution proceedings. In the present case, the execution is yet to reach to the stage of Order 21 Rule 34 of CPC.
21. Per Contra, in light of the direct pronouncement of law as held by the Honourable Supreme Court in the cases of Amit Kumar Shah (supra), Devendra Kumar (supra), and Khemchand Page 27 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined Shankar Choudhari (supra), read with Yogesh Goenka (supra), there is no absolute bar under the law whereby a transferee pendente lite can never be joined in execution proceedings.
22. Thus, this Court would not even like to refer the matter to the Division Bench as the decision of the coordinate Bench passed in Valjibhai (supra) is distinguishable on facts.
23. It is a now well-settled legal position of law that when the Trial Court exercises its discretion in favour of an applicant, this Court ordinarily should not interfere with such discretion used by the Trial Court unless it is supercilious, arbitrary, or contrary to any provisions of law and also settled principles of law.
23.1. It would be apt to refer to and rely upon the decision of the Supreme Court in the case of Sheo Raj Singh v. Union of India reported in (2023) 10 SCC 531, wherein in para 33 it is held as under:
"33. Be that as it may, it is important to bear in mind that we are not hearing an application for condonation of delay but sitting in appeal over a discretionary order of the High Court granting the prayer for condonation of delay. In the case of the former, whether to condone or not would be the only question whereas in the latter, whether there has been proper exercise of discretion in favour of grant of the prayer for condonation would be the Page 28 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025 NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined question. Law is fairly well-settled that "a court of appeal should not ordinarily interfere with the discretion exercised by the courts below". If any authority is required, we can profitably refer to the decision in Manjunath Anandappa v. Tammanasa, 2003 10 SCC 390. which in turn relied on the decision in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, 1980 2 SCC 593. where it has been held that "an appellate power interferes not when the order appealed is not right but only when it is clearly wrong".
(emphasis supplied)
24. CONCLUSION 24.1. In light of what is observed hereinabove, it can be concluded that a transferee pendente lite can be joined in the execution proceedings and as such, there is no clear bar under the law that in no circumstances, a transferee pendente lite cannot be joined in the execution proceedings. 24.2. Having so held, when the Executing Court exercised its discretion in favour of the applicant - respondent No. 1 herein, while passing the impugned order whereby, he is allowed to be joined as a transferee pendente lite in the execution proceedings, such order, not having been found to be either erroneous, perverse, or contrary to any provisions of law, is not required to be disturbed by this Court while exercising its power under Article 227 of the Constitution of India. Page 29 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025
NEUTRAL CITATION C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025 undefined 24.3. In view of the foregoing conclusion, the present application, being bereft of any merits, requires to be rejected, which is hereby REJECTED. Rule is discharged. No order as to costs. Interim relief stands vacated forthwith. The civil application is also disposed of accordingly.
25. The Executing Court shall proceed with the execution and see to it that it is adjudicated and completed within six months from the date of the receipt of the copy of this order. [See Periyammal (dead) Through Lrs & Ors. Vs. V. Rajamani & Anr., reported in 2025 SCC OnLine SC 507 at para 74].
Sd/-
(MAULIK J.SHELAT,J) MOHD MONIS Page 30 of 30 Uploaded by MOHD MONIS(HC01900) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 21:33:50 IST 2025