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2023 DIGILAW 1165 (AP)

Rudraraju Subbaraju v. Manthena Srinivasa Raju

2023-08-07

R.RAGHUNANDAN RAO

body2023
JUDGMENT 1. The petitioner had purchased Ac.0.17 cents of land in Ganapavaram Village and Mandal, West Godavari District from Jampana Sai Bhasakara Raju, who is the 3rd respondent in the revision petition under, a registered deed of sale dtd. 7/6/2015. 2. The petitioner states that he subsequently came to know that O.S.No.121 of 2015 on the file of Senior Civil Judge, Tadepalligudem had been filed for recovery of debt under a promissory note and the property purchased by the petitioner was also attached. O.S.No.121 of 2015 was subsequently decreed and E.P.No.38 of 2016 was filed for execution of the said decree by sale of the property purchased by the petitioner. 3. At this stage, the petitioner moved E.A.No.32 of 2023, before the Executing Court (Senior Civil Judge, Tadepalligudem) under Rules 97 to 101 of order XXI of C.P.C for protecting his title and possession over the property. This application was dismissed on 28/4/2023 by the Executing Court on the ground that a pendente lite a purchaser cannot resist execution by relying upon a Judgment of the Chattisgarh High Court reported in Gokul Prasad vs. Chunnilal and another.,2002 CCC 564. The Executing Court also went into the merits of the case apart from the question of limitation raised by the petitioner and held against the petitioner. 4. Sri T.N.M. Ranga Rao, learned counsel appearing for the petitioner has raised various contentions on the merits of the case including the question of whether the decree itself is invalid as the vendor of the petitioner had not signed the pronote which was the basis of the suit. 5. Smt. Nimmagadda Revathi, learned counsel appearing for the contesting respondents placed reliance upon the Judgment of the Hon'ble Supreme Court reported in Usha Sinha vs. Dina Ram and Others., (2008) 7 SCC 144 contending that a purchaser Pendente lite cannot resist execution nor is entitled to move the Executing Court under Rule 97 or Rule 99 of Order XXI of C.P.C. 6. Order XXI Rule 97 of C.P.C provides for the decree holder to move the Executing Court for assistance in obtaining possession of immovable property from any person who obstructs the decree holder from obtaining possession. Similarly any third party is entitled to move, the Executing Court, under Rule 99, if the decree holder is seeking to dispossess the third party from possession of the immovable property. Similarly any third party is entitled to move, the Executing Court, under Rule 99, if the decree holder is seeking to dispossess the third party from possession of the immovable property. In the event of applications being filed under either provision, the Executing Court would consider the issues that would arise therein in terms of Rule 101 of Order XXI and pass orders. The Executing Court would be passing order under Rule 98 where an application is made under Rule 97. Similarly, the Executing Court would be passing order under Rule 100 where an application has made under Rule 99. Rule 102 of Order XX1 of CPC reads as follows: 102. RULES NOT APPLICABLE TO TRANSFEREE PENDENT 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 judgmentdebtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. 7. This provision has been considered by the Hon'ble Supreme Court in Usha Sinha's case. The relevant paragraphs of the Judgments are paragraphs 23 to 26 which read as follows: 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 Rule 98 or 100 of Order XXI. 24. In Silverline Forum Pvt. 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. 24. In Silverline Forum Pvt. 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 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; "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 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 Sec. 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. 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. We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum. 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. 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 XXI. 8. In view of the aforesaid principles laid down by the Hon'ble Supreme Court, a pendent lite purchaser is not entitled to move an application for protection against the decree holder from dispossessing the said persons. The only course open to a pendent lite purchaser would be to get his vendor to resist the application on appropriate grounds. 9. In the present case, there is no dispute that the petitioner had purchased the property after the suit had been filed and an order of attachment had been granted against the vendor of the petitioner. 10. In the circumstances, this Civil Revision Petition is dismissed leaving it open to the vendor of the petitioner to protect the possession of the petitioner in the event cogent and relevant grounds of defence are available. There shall be no order as to costs. Miscellaneous petitions, pending if any, shall stand closed.