ORISSA HIGH COURT: CUTTACK. R.S.A. No. 247 OF 2010 From a judgment and decree dated 22.5.2010 passed by Shri G. Panda, learned Addl. District Judge, Talcher in R.F.A. No. 7 of 2010 confirming the judgment and decree dated 26.3.2010 passed by Shri Sarat Kumar Dehury, learned Civil Judge (Senior Division), Talcher in I.A. No. 2 of 2010. ----------- Sanjukta Sahu …… Appellant -Versus- Sailabala Mishra and others …… Respondents. For appellant : M/s. Ashok Mukherji, G.Mukherji, P.Mukherji, A.Ch.Panda, S.Patra and S.Dash. For respondent No.16. In person. For respondents: None (For respondents 1 to 15 & 17)) ------------------------------------ Date of Judgment: 12.09.2011 ------------------------------------ PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J. The appellant filed an application under Order – XXI, Rule – 99 C.P.C. in Execution Case No.2 of 2002 pending before the learned Civil Judge (Senior Division), Talcher registered as I.A. No.2 of 2010 resisting the execution of the decree in the execution proceeding on the ground that she is the title holder over the property from which, eviction is sought for. The said application being dismissed, the appellant filed R.F.A. No.7 of 2010, which was disposed of by the learned Additional District Judge, Talcher by his judgment dated 22.05.2010 confirming the order of the executing court. Being aggrieved, the appellant has preferred the present appeal. 2. The Second Appeal has been admitted on the following substantial question of law:- “ Whether the learned courts below have acted contrary to law in dismissing the application filed by the appellant under Order – XXI, Rule – 99 C.P.C. on the ground that this Court in a connected writ application has held that the appellant was a lis pendens purchaser and has acquired no title over the property and as such the learned lower courts are bound by such a finding and cannot rule otherwise even though the learned lower appellate court has given all the findings in favour of the appellant ?” 3. In order to determine the questions raised in this appeal, with regard to the aforesaid question of law, it is necessary to state the facts leading to this appeal in short, which are as follows:- The respondent no.16 along with other respondents filed the Title Suit No.9/20 of 1979/82 in the court of the learned Subordinate Judge, Talcher, (now Civil Judge, (Senior Division)) for declaring the plaintiffs’ right, title and interest over Ac.0.04 decimals of land situated in village Deulapada appertaining to Sabik Plot No.1410 under Khata No.365 and for recovery of possession of the same from the judgment-debtors. The said land was recorded as Plot No.440 under Khata No.362 during the Hal Settlement and the area of the plot was increased to 2 Ac.0.05 decimals. The suit having been decreed, the respondents- plaintiffs filed Execution Case No.2 of 2002 for recovery of possession. The appellant stating that the respondent no.16 sold Ac.0.025 decimals of land out of the disputed property by registered sale deed dated 20.01.2001 and the other two co-sharers, i.e., the other respondents also sold the rest Ac.0.025 decimals of land to the appellant by another registered sale deed dated 16.02.2005 and thus, she has acquired title and possession over the entire property under execution claimed that the execution case should not proceed and filed an application in the said execution proceeding, which was registered as I.A. No.36 of 2008. During pendency of the said Interim Application, as a writ of delivery of possession was issued by the executing court, the appellant preferred W.P.(C) No.11060 of 2008 before this Court, which was dismissed by this Court by order dated 02.12.2008. While dismissing the writ application, this Court made an observation that law is well settled that any alienation made during the pendency of the litigation is hit by the principles of lis pendens and the alienee acquires no title. This Court further observed that if, in fact, the petitioner (appellant herein) has really purchased any part of the suit property, it is open to her to file a petition under Section 144 C.P.C. after the decree holder recovers his possession. It is also open to her to institute a separate suit to enforce such right, if any, acquired through sale deed. A review 3 application, being, RVWPET No.237 of 2008 was filed before this Court to review the said order. This Court disposed of the said Review Application on 08.12.2008 by observing that the order dated 02.12.2008 passed in the writ application does not suffer from any infirmity so as to be reviewed. But, however, gave liberty to the appellant to file a petition under Order – XXI, Rule – 99 C.P.C. highlighting all her grievance before the executing court within a period of four weeks from the date of the said order and further directing the executing court to dispose of the same before issuing writ of delivery of possession. Accordingly, the appellant filed an application under Order – XXI, Rule – 99 C.P.C. in the execution proceeding bringing it to the notice of the executing court that she has purchased the entire property under execution from the decree holders. The said application was registered as I.A. No. 2 of 2010. 4. The learned Civil Judge (Senior Division), before whom, the execution case is pending, after hearing the appellant as the petitioner in the said I.A. No.2 of 2010 and the decree holders respondents noted the facts of the case and coming to the conclusion that the respondent no.16 in his capacity as Power of Attorney holder of his brother, who is the predecessor-in-interest of the other respondents, executed the sale deed on behalf of his brother and the subsequent sale by the other respondents in favour of the appellant was during the pendency of the execution 4 proceeding and therefore, hit by the principles of lis pendens, dismissed the application. The appellant preferred R.F.A. No.7 of 2010 and the learned lower appellate court, after hearing the parties, upon analyzing the evidence adduced in the proceeding under Order – XXI, Rule – 99 C.P.C., came to the finding that the land sold by the respondent no.16, was not sold by him as the special Power of Attorney holder of his brother late Hemanta Kumar Mishra, who was dead by the date of execution of the said sale deed. The rest of the property, which fell to the share of the other respondents, was also sold to the appellant by them by a separate sale deed subsequently. Thus, the learned appellate court after giving such findings in favour of the appellant, referring to the order of this Court passed in the writ application on 02.12.2008, came to the conclusion that the findings of this Court in the said order to the effect that the alienation of the suit land to the appellant was hit by the principles of lis pendens and the appellant acquired no title, are binding on the executing court as well as the lower appellate court, came to the following conclusion:- “In this case, the Hon’ble High Court have passed order that the appellant being lispendence purchaser did not acquire any title over the suit land. So, the said order is binding on this court as well as on the learned executing court. As such, this court is bound to respect the order of the Hon’ble Court passed in W.P.C. No. 11060 of 2008. The review petition filed by the appellant to review the said order was rejected by the Hon’ble Court. Hence, I held that 5 the learned lower court did not commit error in dismissing the petition filed by the appellant under Order 21 Rule 99 of the C.P.C. that the decree was discharge in view of the sale of the disputed land by the respondent No. 16 and his co-sharers to the appellant” 5. Mr. Mukherjee, learned senior counsel appearing for the appellant strongly urged that the order passed by this Court in W.P.(C) No.11060 of 2008 on 02.12.2008, no where, precluded the learned executing court from coming to the finding that after the suit was decreed, the appellant by her two purchases, has acquired full title over the property under execution. He further contended that the question of lis pendens purchase does not arise in the instant case, as the first sale deed executed by the respondent no.16, was after the date, when the decree was passed in the suit and even after the said decree was affirmed by the first and second appellate courts, the second sale deed was executed during the pendency of the execution proceeding, which would amount to assignment of the decree in respect of the property under the second sale deed to the appellant and, therefore, according to Mr. Mukherjee, the learned lower courts have committed illegality in holding that the decree can be executed and in rejecting the application filed by the plaintiffs under Order – XXI, Rule – 99 C.P.C. even though the learned lower appellate court returned all the findings in favour of the appellant. 6. The respondent no.16 was heard in person and while supporting his objection filed to the application under Order 6 – XXI, Rule – 99 C.P.C., before the executing court, contended that the sale deed executed by him was in the capacity of a Power of Attorney holder of his brother Hemanta Kumar Mishra and he did not sell his share. This aspect has been dealt with by the courts below and the lower appellate court has come to a finding that the sale deed was executed by the respondent no.16 in regard to his 50% share in the property and not as a Power of Attorney holder of his brother, as claimed by him. This is also a question of fact, which cannot be gone into in this Second Appeal. 7. However, it would be appropriate to note that this Court in the order dated 02.12.2008 passed in W.P.(C) No.11060 of 2008 held as follows :- “Fact remains, the judgment and decree of the trial court declaring right, title and interest of the suit property as well as for recovery of possession from the judgment- debtors have been confirmed at the second appellate stage. This Court fails to understand as to how the petitioner, who claims to be subsequent purchaser, could take possession of any shop-room, more so when the execution case was pending. Law is well settled that any alienation made during pendency of a litigation is hit by the principles of lis pendens and the alienee acquires no title. Even otherwise, if the petitioner has really purchased any part of the suit property, it is open to her to file a petition under Section 144 C.P.C. after the decree-holder recovers his possession. It is also open to her to institute a separate suit to enforce her right, if any, acquired through sale deed”. 8. The said order was subsequently reviewed, where liberty was granted to the appellant to make an application 7 under Order–XXI, Rule–99 C.P.C. before the executing court. Therefore, the learned appellate court appears to have misread the aforesaid order of this Court with regard to application of theory of lis pendens. 9. In view of the above, this Court finds it proper to remit the matter back to the learned lower appellate court to re- examine the question as to whether the purchases made by the appellant from the respondent no.16 and from other respondents by virtue of the two sale deeds were hit by the principles of lis pendens in the facts and circumstances of this case. It is made clear that the observations made by this Court in the order dated 02.12.2008, quoted above, will not bind the learned lower appellate court to give any independent finding on the question as to whether the purchases made by the appellant are hit by the principles of lis pendens as this Court in the said order only made an observation that law is well settled that any alienation made during pendency of a litigation is hit by the principles of lis pendens and the alienee acquires no title. It was never held by this Court that in the instant case the appellant has acquired no title. The judgment of the learned lower appellate court is, therefore, set aside and the matter is remitted back to the learned lower appellate court, who is directed to rehear the appeal afresh and pass a fresh judgment in the said appeal. Till such appeal is 8 disposed of, no writ of delivery of possession shall be issued in Execution Case No.2 of 2002. 10. The appeal is partly allowed, but in the circumstances without cost. …………………… M.M. Das, J. Orissa High Court,Cuttack September 12th, 2011/Biswal. 9