Case Note & Summary
The case involves a dispute between two tenants over possession of a property. The landlord, Mohammed Usman Shaikh Umar, filed a suit for eviction against his tenants and obtained a consent decree in December 2009. He then filed an execution petition and got the tenants evicted and took possession in a single day. The next day, the original tenant, Mrs. Fehmida Usman Gani Shaikh, approached the court claiming to be the original tenant. Before her application was disposed of, the landlord inducted another person, Mr. Maqbool Munaf Gagan, as a tenant. The court found the consent decree to be collusive and allowed the original tenant to recover possession. The subsequent tenant then resisted the original tenant's efforts to regain possession. The legal issues considered were whether the doctrine of lis pendens applies to post-decree execution proceedings, whether an application under Order XXI Rule 97 or 99 can be treated as a suit for applying the lis pendens doctrine, and whether the subsequent tenant can resist the original tenant's claim. The court held that the doctrine of lis pendens applies to execution proceedings and that an application under Order XXI Rule 97 or 99 is treated as a suit for this purpose. The subsequent tenant, being a lis pendens inductee, cannot resist the original tenant's claim. The court allowed the writ petition and directed the subsequent tenant to hand over possession to the original tenant.
Headnote
A) Civil Procedure - Lis Pendens - Execution Proceedings - Doctrine of lis pendens applies to post-decree execution proceedings under Order XXI CPC - An application under Order XXI Rule 97 or 99 CPC is treated as a suit for the purpose of lis pendens - A person inducted during the pendency of such proceedings is a lis pendens inductee and cannot resist the original tenant's claim for possession (Paras 3, 10-15). B) Civil Procedure - Consent Decree - Collusive Decree - A consent decree obtained without notice to the original tenant and executed in a single day is collusive and does not bind the original tenant - The court can set aside such decree and restore possession to the original tenant (Paras 5-7). C) Civil Procedure - Lis Pendens - Institution of Suit - For the purpose of lis pendens, the institution of a suit includes the filing of an application under Order XXI Rule 97 or 99 CPC - The lis begins from the date of filing such application (Paras 12-14).
Issue of Consideration
Whether the doctrine of lis pendens applies to post-decree execution proceedings and whether a subsequent tenant inducted during such proceedings can resist the original tenant's claim for possession.
Final Decision
The court allowed the writ petition and directed the subsequent tenant to hand over possession of the premises to the original tenant within a specified period.
Law Points
- Doctrine of lis pendens applies to execution proceedings
- Application under Order XXI Rule 97 or 99 CPC treated as suit for lis pendens
- Lis pendens inductee cannot resist possession against original tenant
- Consent decree collusive if obtained without notice to original tenant
