Case Note & Summary
The respondent, a decree holder, had filed Special Civil Suit No.224 of 1992 for specific performance of a contract dated 11 May 1987 for the purchase of 27 shops. The suit was decreed on 17 July 2010, directing the defendants to hand over possession and execute conveyance. The decree attained finality after multiple rounds of First Appeals before the Bombay High Court and the Supreme Court. The decree holder filed Special Darkhast No.104 of 2010 for execution. During execution, obstructionist applications were filed by M/s. Om Shanti Commercial Premises Co-operative Society and its members, claiming independent right over the subdivided plot and constructions, and arguing the decree was not binding on them. The executing court, after recording evidence, dismissed the obstructionist's application on 21 March 2014, holding that the obstructionists had no independent right and were transferees pendente lite bound by the decree. This order was challenged in First Appeal No.468 of 2014, which was dismissed by the High Court on 16 January 2015, reiterating that transferees pendente lite cannot claim independent right. Subsequently, multiple obstructionist applications (Exhibits 317, 323, 325, 327, 332, 336, 341, 345, 349, 353, 355, 358, 361 and 381) were filed. By the impugned order dated 16 September 2016, the Joint Civil Judge Senior Division, Thane allowed the decree holder's application under Exhibit 365 and dismissed all obstructionist applications. The appellants, who were obstructionists, filed the present First Appeals challenging that order. The appeals involved a common issue and were heard together with consent for final disposal. The High Court reserved judgment on 23 January 2017 and delivered a common judgment on 14 February 2017.
Headnote
A) Civil Procedure - Execution Proceedings - Obstructionist Application - Code of Civil Procedure, 1908, Order XXI Rule 97 - Obstructionist who fails to prove independent right and is found to be transferee pendente lite is bound by decree, and obstruction is not sustainable - Executing court had held that obstructionist society and its members had no independent right and were transferees pendente lite; High Court in earlier appeal upheld this finding (Paras 5-7).
B) Execution of Decree - Specific Performance - Decree for possession of shops and execution of conveyance was binding on judgment debtors and those claiming through them; executing court dismissed obstructionist applications, and High Court disposed of subsequent appeals by common judgment (Paras 3-5).
Issue of Consideration
Whether the obstructionists had any independent right against the execution of the decree for specific performance and whether the executing court correctly dismissed the obstructionist applications
Law Points
- Obstructionist under Order XXI Rule 97 must prove independent right
- transferee pendente lite is bound by decree
- execution can proceed against obstructionist who fails to prove independent right
- decree for specific performance binds successors-in-interest
Case Details
2017 LawText (BOM) (02) 64
First Appeal No.1586 of 2016 with Civil Application No.4519 of 2016; First Appeal No.1587 of 2016 with Civil Application No.4520 of 2016; First Appeal No.1588 of 2016 with Civil Application No.4521 of 2016; First Appeal No.1589 of 2016 with Civil Application No.4522 of 2016; First Appeal No.1590 of 2016 with Civil Application No.4523 of 2016; First Appeal No.1591 of 2016 with Civil Application No.4524 of 2016; First Appeal No.1592 of 2016 with Civil Application No.4525 of 2016; First Appeal No.1593 of 2016 with Civil Application No.4526 of 2016; First Appeal No.1594 of 2016 with Civil Application No.4527 of 2016; First Appeal No.1595 of 2016 with Civil Application No.4528 of 2016; First Appeal No.1627 of 2016 with Civil Application No.4613 of 2016; First Appeal (L) No.30523 of 2016 with Civil Application No.4753 of 2016; First Appeal (L) No.30533 of 2016
Shantanu S. Kemkar, Prakash D. Naik
Mrs. Savita Ganoo, Mr. V. K. Hingorani, Mr. M. P. S. Rao, Mr. Onam Hingorani, Mr. M. D. Nagle, Mr. V.M. Parkar, Mr. S.S. Lanke, Mr. Salim Nawab, Mr. Puthenpurail Oommen Varghese
Rohit Gujarilal Anand, Sanjeev Pyarelal Prajapati, Rajesh Pyarelal Prajapati, Mrs. Nirupama Rajesh Prajapati, M/s. Pyarelal Trading & Marketing, Piyus Ramniklal Mehta, Mrs. Manjula Kushalchandra Jain, Mrs. Kokila L. Shah, M/s. Shreepal Trade Impes, Sunil Medical & General Store, Gopal Vasudeo Singh, M/s. Anuj Hotel
M/s. Arcade (India) Pvt. Ltd. (Through Its Managing Director Shri M. G. Ramchandra) & Ors.
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Nature of Litigation
Execution proceeding arising from decree for specific performance of contract; obstructionist applications under Order XXI Rule 97 CPC.
Remedy Sought
The decree holder sought dismissal of obstructionist applications filed by the appellants, who claimed independent rights over the property and resisted execution of decree.
Filing Reason
Obstructionists filed applications claiming independent right over subdivided plot and constructions, arguing decree not binding on them.
Previous Decisions
Executing Court initially rejected obstructionist society's application on 21 March 2014; High Court dismissed First Appeal No.468/2014 on 16 January 2015; impugned order dated 16 September 2016 dismissed further obstructionist applications.
Issues
Whether the obstructionists had any independent right over the property to resist execution of decree for specific performance
Whether the executing court correctly dismissed the obstructionist applications under Exhibits 317 etc.
Whether transferees pendente lite are bound by decree for specific performance
Submissions/Arguments
Obstructionists contended they had independent right over subdivided plot and constructions not covered by decree, and were not claiming through judgment debtor.
Decree holder argued obstructionists were transferees pendente lite, had no independent right, and were bound by decree.
Judgment Excerpts
the obstructionist has failed to prove any independent right in the property which is the subject of execution proceeding and hence the obstruction has not sustainable under Order XXI Rule 97 of the CPC.
The Court reiterated that the appellants therein are transferee pendant lite and therefore cannot claim any independent right and were bound by decree dated 17 th July, 2010.
By consent of counsel for respective parties, the matters are taken up for final disposal.
the Appeals and the Civil Applications involves the common issue and the common impugned order, same are disposed of by common judgment.
Procedural History
Special Civil Suit No.224 of 1992 filed for specific performance; decree passed on 17-07-2010; execution filed as Special Darkhast No.104 of 2010; obstructionist application Exh 28 filed; evidence recorded; order dated 21-03-2014 rejecting obstruction; FA No.468 of 2014 filed; dismissed on 16-01-2015; multiple obstructionist applications (Exhibits 317 etc.) filed; order dated 16-09-2016 dismissing them under Exh 365; present First Appeals filed in 2016; heard together, reserved on 23-01-2017, delivered on 14-02-2017.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXI Rule 97
