Case Note & Summary
The dispute arises from a partition suit (O.S.No.38 of 1956) filed by Padmakshy before the Sub Court, Parur, seeking partition and separate possession of her share in 13 items of immovable properties. A preliminary decree was passed on 23.10.1958, and a final decree on 09.03.1970. The final decree was engrossed on stamp paper on 19.11.1990. The decree holder filed Execution Petition No.4 of 1991 on 13.03.1991, seeking delivery of possession. The executing court ordered delivery, and possession of a portion of item no.4 property was delivered to the decree holder on 22.11.1994. Thereafter, Raghuthaman, claiming independent right, title, and interest in the property by virtue of an assignment deed dated 01.12.1964 from Defendant No.10, filed E.A.No.1 of 1995 under Order XXI Rule 99 CPC for re-delivery, along with E.A.No.2 of 1995 for injunction and E.A.No.3 of 1995 for damages. The executing court dismissed all three applications on 12.08.1997. Raghuthaman appealed to the High Court in E.F.A Nos.6 and 7 of 1998, which were initially dismissed on 30.05.2007 but later allowed on review on 22.03.2010. The High Court, by judgment dated 11.11.2011, allowed the appeals and remanded the matter to the trial court for fresh consideration, holding that the execution petition was barred by limitation under Article 136 of the Limitation Act, and that Raghuthaman, as a stranger to the decree, could raise this issue. The appellants, legal representatives of the original decree holder, appealed to the Supreme Court. The Supreme Court considered whether a pendente lite transferee can maintain an application under Order XXI Rule 99 CPC and raise limitation. The Court held that Order XXI Rule 99 CPC allows 'any person' other than the judgment debtor who is dispossessed to apply for re-delivery, and this includes a pendente lite transferee who is a stranger to the decree. The Court also noted that the transfer to Raghuthaman occurred before the final decree, and he had successfully resisted delivery earlier. The Court relied on Yogesh Goyanka v. Govind and Sriram Housing Finance & Investment (India) Ltd. v. Omesh Mishra Memorial Charitable Trust to affirm that a pendente lite transferee has the right to defend his title and that the doctrine of lis pendens does not render the transfer void. The Supreme Court dismissed the appeals, upholding the High Court's remand for fresh consideration on the issue of limitation and the merits of the third-party claim.
Headnote
A) Civil Procedure - Execution of Decree - Order XXI Rule 99 CPC - Third Party Application - A person other than the judgment debtor, dispossessed of immovable property in execution of a decree, may apply for re-delivery under Order XXI Rule 99 CPC, even if such person is a pendente lite transferee not impleaded in the suit. The term 'any person' includes a stranger to the decree, and the application is maintainable to adjudicate independent right, title, and interest. (Paras 14-15) B) Limitation - Execution Petition - Article 136 Limitation Act, 1963 - Time-Barred Decree - A third party dispossessed in execution can raise the question of limitation of the execution petition, as the decree holder's right to execute is subject to limitation. The High Court's remand for fresh consideration on this ground was upheld. (Paras 9, 11, 13) C) Transfer of Property Act, 1882 - Section 52 - Doctrine of Lis Pendens - Pendente Lite Transferee Rights - A transfer pendente lite is not void ab initio but renders the transferee's rights subservient to the pending litigation. The transferee has the right to defend his title and possession, and may be impleaded to protect his interests. (Para 15)
Issue of Consideration
Whether a pendente lite transferee, who is a stranger to the decree, can maintain an application under Order XXI Rule 99 CPC seeking re-delivery of possession and raise the question of limitation of the execution petition.
Final Decision
The Supreme Court dismissed the civil appeals, upholding the High Court's judgment dated 11.11.2011 which allowed E.F.A Nos.6 and 7 of 1998 and remanded the matter to the trial court for fresh consideration on the issue of limitation and the merits of the third party's claim.
Law Points
- Order XXI Rule 99 CPC
- Article 136 Limitation Act
- 1963
- Doctrine of lis pendens
- Section 52 Transfer of Property Act
- 1882
- Pendente lite transferee rights
