Case Note & Summary
The present second appeal arose from execution proceedings in a partition suit that commenced in 1974. The original plaintiff Shankarrao Kanakdande had filed Regular Civil Suit No.246 of 1974 for partition of ancestral properties, including land Block No.387. The trial court by judgment dated 15.01.1980 decreed the suit but excluded Block No.387, holding it to be the self-acquired property of Madhukar @ Yashwantrao Kanakdande. Within ten days, i.e., on 25.01.1980, Madhukar transferred Block No.387 to Balwant and Mahalsakant. Through subsequent transactions, the appellants (Atmaram Pole and his sons) acquired title and possession. Meanwhile, Shankarrao preferred Regular Civil Appeal No.25 of 1980, which was allowed and by consent of the parties, Block No.387 was treated as ancestral property and included in the partition decree. The decree holders then initiated execution in Regular Darkhast No.20 of 2002. The appellants filed an objection under Order XXI Rule 97 of the Code of Civil Procedure, 1908, asserting that the appellate decree was collusive, obtained behind their back, and that they were bona fide purchasers for value without notice. The Executing Court rejected the objection on 07.02.2014, primarily on the ground that appellants were pendente lite purchasers barred by Section 52 of the Transfer of Property Act, 1882. The appellate court (District Judge-1, Kandhar) upheld that order on 16.06.2016. In the second appeal, the High Court framed substantial questions of law regarding non-framing of issues, collusion, bona fide purchaser status, and whether the sale deed bound the vendor’s share. The appellants argued that the consent decree was collusive and relied on Nathu Dhoju Gholap v. Ramchand Balchand to contend that a fraudulent compromise does not bind pendente lite transferees. The respondents maintained that pendente lite purchasers cannot object and that no collusion was proved. The High Court observed that the appellants were undisputedly pendente lite purchasers; the sale in their chain of title occurred immediately after the trial court decree and before the appeal. The court held that the rigors of Section 52 of the Transfer of Property Act, 1882 and Order XXI Rule 102 of the Code of Civil Procedure, 1908 must be given full effect, and such transferees are not entitled to resist execution. On the allegation of collusion, the court found that the appellate decree recording consent that the property was ancestral did not by itself establish fraud. The appellants failed to lead any evidence to substantiate the plea of collusion, and both lower courts had concurrently found against them on this issue. The High Court declined to disturb those concurrent findings. The appeal was accordingly dismissed, and the bar on objections by pendente lite purchasers was affirmed. The decision reinforces the principle that transferees pendente lite take subject to the outcome of the pending litigation and cannot defeat the decree holder’s rights.
Headnote
A) Execution of Decrees - Objections by Pendente Lite Purchasers - Bar under Section 52 Transfer of Property Act, 1882 and Order XXI Rule 102 Code of Civil Procedure, 1908 - Appellants, having purchased the suit property after filing of suit but before execution, were pendente lite purchasers. Held, the rigors of Section 52 of the Transfer of Property Act, 1882 and Order XXI Rule 102 of the Code of Civil Procedure, 1908 operate to nullify resistance by such transferees, and they cannot obstruct execution of the decree. (Paras 10, 12) B) Execution of Decrees - Collusive Decree - Consent Decree in Appeal Not Per Se Collusive - Transfer of Property Act, 1882 Section 52; Code of Civil Procedure, 1908 Order XXI Rule 97 - The appellate decree was passed on consent of parties treating the property as ancestral. Appellants failed to adduce evidence that the consent was fraudulent or intended to defraud purchasers. Held, mere consent to the status of property does not establish collusion; concurrent finding of courts below upheld. (Para 11) C) Transfer of Property - Lis Pendens - Exception for Fraud or Collusion - Transfer of Property Act, 1882 Section 52 - Observations in Nathu Dhoju Gholap v. Ramchand Balchand and Anr. indicate that a fraudulent or collusive consent decree may not bind pendente lite transferees. However, no such fraud was proved; therefore, the exception did not apply. (Paras 8, 11) D) Civil Procedure - Objections under Order XXI Rule 97 - Proof and Procedure - Code of Civil Procedure, 1908 Order XXI Rules 97, 98, 101 - Appellants contended that non-framing of issues vitiated the trial. The courts below recorded findings on evidence and conclusively held that there was no collusion. Held, no prejudice was shown, and concurrent factual findings do not warrant interference. (Paras 6, 9, 11)
Issue of Consideration
Whether pendente lite purchasers can maintain objection under Order XXI Rule 97 of the Code of Civil Procedure, 1908 against execution of a decree that was allegedly obtained collusively and behind their back; and whether the courts below erred in rejecting the objection.
Final Decision
The second appeal was dismissed. The High Court upheld the concurrent findings that the appellants were pendente lite purchasers and therefore, under Section 52 of the Transfer of Property Act and Order XXI Rule 102 CPC, they could not resist execution. The plea of collusion was rejected as unsubstantiated.
Law Points
- Legal points not extracted
- Pendente lite purchaser cannot resist execution under Order XXI Rule 97 due to operation of Section 52 Transfer of Property Act and Order XXI Rule 102 Code of Civil Procedure
- 1908
- Consent decree not presumed collusive
- burden is on objector to prove fraud or collusion
- Bona fide purchaser doctrine does not override lis pendens
- Objection under Order XXI Rule 97 rejected when concurrent findings of fact record no collusion and no prejudice from non-framing of issues
