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REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.6163-6164 OF 2019

(Arising out of SLP (C) Nos.7222-7223/2019)

MENKA GUPTA Appellant

VERSUS

UMASHREE DEVI Respondent

JUDGMENT

Uday Umesh Lalit, J.

1. Leave granted. These appeals challenges the correctness of the

judgment and order dated 13.08.2018 passed by High Court of judicature at

Patna in CWJC No.11170 of 2010 and CWJC No.14075 of 2010.

2. Title Suit No.137/2007 was filed by the appellant in the Court of 1 st

Sub-Judge, District Siwan, seeking specific performance in respect of an

oral agreement dated 10.10.2006. It was submitted that in pursuance of

the agreement, a sum of Rs.50,000/- was made over to the original vendor
Signature Not Verified

Digitally signed by
and the plaintiff was put in partial possession of the suit property. It
MUKESH KUMAR
Date: 2019.08.14
14:34:07 IST
Reason:

was further submitted that on 20.02.2007 the plaintiff had paid the balance

sum of Rs.36,000/- in the Registrar’s Office and all the formalities were
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completed but at the stage of signing the documents, the vendor pleaded

some physical discomfort and as such, the document could not be executed

and that thereafter the vendor avoided execution of the documents.

3. The summons issued by the Trial Court on 17.06.2007 in said Title

Suit No.137/2007 were said to have been refused to be accepted by the

defendant-original vendor. Subsequently, an ex parte decree was passed by

the Trial Court on 31.03.2008 in said suit.

4. The decree holder-appellant thereafter initiated proceedings to have

the decree executed, at which stage the original defendant filed an

application being Misc. Case No.43 of 2008 under Order IX Rule 13 of the

Code of Civil Procedure, 1908 (for short “CPC”) on 11.07.2008 to get the

ex parte decree set-aside.

5. While said application was pending consideration, the original

defendant-vendor executed a conveyance of the suit property on

06.11.2009,in favour of the present respondent. The attempts made by the

decree holder to get the decree executed were obstructed by the respondent

which led to proceedings under Order XXI Rule 97 of CPC getting initiated

on 22.12.2009. In those proceedings, the respondent was impleaded on

12.01.2010.

6. The original defendant-vendor died on 22.01.2010.

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7. Thereafter, the respondent filed an application under Order I Rule

10 read with Order XXII Rule 10 and Section 141 of CPC to have herself

substituted in place of original defendant. The Sub-Judge, Siwan by his

order dated 16.06.2010 dismissed Misc. Case No.43 of 2008 as having

abated and also by a separate order of the same date rejected the prayer of

the respondent herein to stay the execution proceedings. This led to the

filing of CWJC No.11170 of 2010 and CWJC No.14075 of 2010 by the

respondent in the High Court challenging afore-mentioned orders dated

16.06.2010. The petitions were allowed by the High Court and the issues

were discussed as under:

“7. Thus, is appears that the petitioner is claiming his

right, title and interest over the suit property on the
basis of Mahadanama executed on 05.07.2006
followed by registered sale deed dated 06.11.2009.
The respondent on the other hand filed title suit on
07.04.2007 on the basis of oral agreement.

8. In view of above facts I find that the petitioner is

necessary party to the miscellaneous case as after the
death of Durga Prasad it is the petitioner who would
suffer loss in the event of dismissal of miscellaneous
case. The heirs of Durga Prasad have lost their interest
in the suit property. They have neither cause of action
nor the right to sue the opposite party of Miscellaneous
Case No.43 of 2008.”

8. In these appeals challenging the correctness of the view taken by

the High Court we heard Mr. Joseph Aristotle, learned counsel for the

appellant and Mr. Gaurav Agrawal, learned counsel for the respondent.
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9. Mr. Joseph Aristotle, learned Counsel submitted that the

respondent-purchaser of the suit property during pendency of litigation had

no right to obstruct execution of decree passed by a competent court. He

relied upon Rule 102 of Order XXI of CPC. In his submission, the

respondent had no locus standi in the matter and his application for being

impleaded in Miscellaneous Case No.43 of 2008 was rightly rejected by the

Sub-Judge. He submitted that the High Court was in error in permitting

such impleadment. Reliance was placed on the decision of this Court in

Usha Sinha v. Dina Ram and others1and particularly paragraphs 17, 23,

26 and 32, which are to the following effect:

“17. Rule 102 clarifies that Rules 98 and 100 of Order 21

of the Code do not apply to transferee pendente lite. That
Rule is relevant and material and may be quoted in extenso:
“102. Rules not applicable to transferee pendente lite.
—Nothing in Rules 98 and 100 shall apply to
resistance or obstruction in execution of a decree for
the possession of immovable property by a person to
whom the judgment-debtor has transferred the
property after the institution of the suit in which the
decree was passed or to the dispossession of any such
person.”
Bare reading of the Rule makes it clear that it is based on
justice, equity and good conscience. A transferee from a
judgment-debtor is presumed to be aware of the
proceedings before a court of law. He should be careful
before he purchases the property which is the subject-
matter of litigation. It recognises the doctrine of lis pendens
recognised by Section 52 of the Transfer of Property Act,
1882. Rule 102 of Order 21 of the Code thus takes into
account the ground reality and refuses to extend helping
hand to purchasers of property in respect of which litigation
is pending. If unfair, inequitable or undeserved protection is
afforded to a transferee pendente lite, a decree-holder will

1 (2008) 7 SCC 144

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never be able to realise the fruits of his decree. Every time
the decree-holder seeks a direction from a court to execute
the decree, the judgment-debtor or his transferee will
transfer the property and the new transferee will offer
resistance or cause obstruction. To avoid such a situation,
the Rule has been enacted.

23. It is thus settled law that a purchaser of suit property

during the pendency of litigation has no right to resist or
obstruct execution of decree passed by a competent court.
The doctrine of “lis pendens” prohibits a party from dealing
with the property which is the subject-matter of suit. “Lis
pendens” itself is treated as constructive notice to a
purchaser that he is bound by a decree to be entered in the
pending suit. Rule 102, therefore, clarifies that there should
not be resistance or obstruction by a transferee pendente
lite. It declares that if the resistance is caused or obstruction
is offered by a transferee pendente lite of the judgment-
debtor, he cannot seek benefit of Rules 98 or 100 of Order
21.

26. For invoking Rule 102, it is enough for the decree-

holder to show that the person resisting the possession or
offering obstruction is claiming his title to the property
after the institution of the suit in which decree was passed
and sought to be executed against the judgment-debtor. If
the said condition is fulfilled, the case falls within the
mischief of Rule 102 and such applicant cannot place
reliance either on Rule 98 or Rule 100 of Order 21.

32. In our judgment, the High Court was also right in

observing that if the appellant succeeds in the suit and
decree is passed in her favour, she can take appropriate
proceedings in accordance with law and apply for
restitution. That, however, does not preclude the decree-
holder from executing the decree obtained by him. Since
the appellant is a purchaser pendente lite and as she has no
right to offer resistance or cause obstruction and as her
rights have not been crystallised in a decree, Rule 102 of
Order 21 of the Code comes into operation. Hence, she
cannot resist execution during the pendency of the suit
instituted by her. The order passed by the High Court,
therefore, cannot be said to be illegal, unlawful or
otherwise contrary to law.”
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10. Mr. Gaurav Agrawal, learned Counsel on the other hand relied upon

the decision of this Court in Raj Kumar v. Sardari Lal and others2 where

an application filed by a transferee pendente lite under Order IX Rule 13 of

CPC was allowed. The plea that such a transferee could not be allowed to

maintain the application under Order IX Rule 13 was expressly rejected.

The following observations in paras 8 and 9 are noteworthy:

“8. A lis pendens transferee from the defendant, though not

arrayed as a party in the suit, is still a person claiming
under the defendant. The same principle of law is
recognized in a different perspective by Rule 16 of Order
21 CPC which speaks of transfer or assignment inter vivos
or by operation of law made by the plaintiff decree-holder.
The transferee may apply for execution of the decree of the
court which passed it and the decree will be available for
execution in the same manner and subject to the same
conditions as if the application were made by the decree-
holder. It is interesting to note that a provision like Section
146 CPC was not to be found in the preceding Code and
was for the first time incorporated in CPC of 1908. In
Order 21 Rule 16 also an explanation was inserted through
amendment made by Act 104 of 1976 w.e.f. 1-2-1977,
whereby the operation of Section 146 CPC was allowed to
prevail independent of Order 21 Rule 16 CPC.

9. A decree passed against the defendant is available for

execution against the transferee or assignee of the
defendant judgment-debtor and it does not make any
difference whether such transfer or assignment has taken
place after the passing of the decree or before the passing
of the decree without notice or leave of the court.”

11. The scope of submissions available to an obstructionist under Order

XXI Rule 97 of CPC would be restricted to consider whether he could

2 (2004) 2 SCC 601

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validly or lawfully obstruct the execution of the decree. On the other hand

for a defendant who had moved an application under Order IX Rule 13 of

CPC, the scope of the challenge would be to consider whether there was

sufficient cause which prevented him from appearing when the proceedings

were taken up or whether there was serious infirmity in service of the

summons upon him. The scope of challenge and available submissions at

these two stages are thus distinct and different and as such the observations

of this Court in Usha Sinha1 would not strictly govern and restrict the

scope of an application on behalf of a transferee pendente lite at the stage

of Order IX Rule 13 of CPC.

12. The decision in Usha Sinha1 considered the matter from the stand

point of scope of Order 21 Rule 102 and other related rules. On the other

hand, the matter directly on the point is the decision of this Court in Raj

Kumar2 which was the case of transferee pendente lite filing an application

under Order IX Rule 13 of the Code. In that context the attack on the

ground of locus standi of such applicant was rejected in express terms.

The view taken by the High Court in the instant case is consistent

with the law laid down in the case of Raj Kumar2.

13. We, therefore, affirm the view taken by the High Court and see no

ground to interfere in the matter. However, considering the fact that the

litigation has been pending for more than a decade, we direct the concerned
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Court to dispose of Miscellaneous Case No.43 of 2008 as early as possible

and preferably within one month from the date of receipt of this order. The

parties shall appear before the Court on 14.08.2019. Needless to say that

the parties shall maintain status quo with regard to the property in question

till further orders.

14. The appeals stand disposed of accordingly. No costs.

……................................J.
[UDAY UMESH LALIT]

……................................J.
[VINEET SARAN]
NEW DELHI;
AUGUST 7, 2019
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ITEM NO.2 COURT NO.8 SECTION XVI

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition for Special Leave to Appeal (C) Nos.7222-7223/2019

(Arising out of impugned final judgment and order dated 13-08-2018

in CWJC No.11170/2010, 13-08-2018 in CWJC No.14075/2010 passed by
the High Court Of Judicature At Patna)

MENKA GUPTA Petitioner(s)

VERSUS

UMASHREE DEVI Respondent(s)

(IA No.72577/2019 – FOR EXEMPTION FROM FILING O.T.; and, IA

No.37919/2019 – FOR EXEMPTION FROM FILING O.T.)

Date : 07-08-2019 These matters were called on for hearing today.

CORAM :
HON'BLE MR. JUSTICE UDAY UMESH LALIT
HON'BLE MR. JUSTICE VINEET SARAN

For Petitioner(s) Mr. Joseph Aristotle, Adv.

Mr. Nitish Kumar Singh, Adv.
Mr. Shashank Shekhar Singh, AOR

For Respondent(s) Mr. Gaurav Agrawal, AOR

UPON hearing the counsel the Court made the following

O R D E R

Leave granted.

These appeals are disposed of, in terms of the reportable

judgment.

Pending application(s), if any, shall stand disposed of.

(MUKESH NASA) (SUMAN JAIN)

COURT MASTER BRANCH OFFICER
(Signed Reportable Judgment is placed on the File)