Case Note & Summary
The petitioner, Kashinath Ramji Shinde (since deceased, represented by legal heirs), filed a suit in 1987 seeking possession, declaration, and mesne profits. After a long legal battle, the suit was decreed in 2011. In 2013, the petitioner initiated execution proceedings under Order 21 Rule 35 of the Code of Civil Procedure, 1908 (CPC) for possession of the decretal property. During the execution, the petitioner filed an application (Exh.145-D) seeking directions against respondent no.7, Dr. Ashok B. Lohalekar, who had purchased the property pendente lite during the suit. The petitioner had initially impleaded respondent no.7 as a defendant but later deleted him under Order 1 Rule 10 CPC. The Executing Court rejected the application, holding that since respondent no.7 was not a party to the decree, he could not be dispossessed in execution without a separate suit. Aggrieved, the petitioner filed the present writ petition. The High Court examined the issue of whether a decree-holder can seek possession in execution against a pendente lite purchaser who was deleted from the suit. The Court held that under Section 52 of the Transfer of Property Act, 1882, a purchaser pendente lite is bound by the decree and is a representative-in-interest of the judgment-debtor. The deletion of the purchaser from the suit does not affect the binding nature of the decree. The Court further held that Order 21 Rule 35 CPC allows execution of a decree for possession against any person in possession, including a pendente lite purchaser. The impugned order was set aside, and the Executing Court was directed to proceed with the execution against respondent no.7 in accordance with law. The writ petition was allowed with no order as to costs.
Headnote
A) Civil Procedure - Execution of Decree - Order 21 Rule 35 CPC - Possession against pendente lite purchaser - The petitioner/decree-holder obtained a decree for possession in 2011 after a suit filed in 1987. During execution, the decree-holder sought possession against respondent no.7, a purchaser pendente lite who was initially impleaded and later deleted from the suit. The Executing Court rejected the application. The High Court held that a purchaser pendente lite is bound by the decree under Section 52 of the Transfer of Property Act and can be dispossessed in execution under Order 21 Rule 35 CPC without a separate suit. The deletion of the purchaser from the suit does not affect the decree-holder's right to execute against him. The impugned order was set aside and the Executing Court was directed to proceed with execution against respondent no.7. (Paras 2-10) B) Civil Procedure - Impleadment - Order 1 Rule 10 CPC - Deletion of party - The petitioner had initially impleaded respondent no.7 as a defendant in the suit but later deleted him under Order 1 Rule 10 CPC. The Court held that such deletion does not absolve the pendente lite purchaser from the binding effect of the decree. The decree-holder is entitled to execute the decree against the purchaser in possession. (Paras 5-8) C) Property Law - Lis Pendens - Section 52 Transfer of Property Act - Pendente lite purchaser - The principle of lis pendens applies to transfers made during the pendency of a suit. A purchaser pendente lite is bound by the decree and cannot claim independent rights. The Court relied on the principle that a transferee pendente lite is a representative-in-interest of the judgment-debtor and can be proceeded against in execution. (Paras 6-9)
Issue of Consideration
Whether a decree-holder can seek possession in execution against a pendente lite purchaser who was initially impleaded and later deleted from the suit, without filing a separate suit for possession.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 19.08.2024, and directed the Executing Court to proceed with the execution against respondent no.7 in accordance with law. No order as to costs.
Law Points
- Pendente lite purchaser bound by decree
- Order 21 Rule 35 CPC
- Order 1 Rule 10 CPC
- Section 52 Transfer of Property Act
- lis pendens
- execution against transferee pendente lite
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