ESA No. 13 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- ESA No. 13 of 2009 Date of decision: July 28, 2009 Rakesh and others ........ Appellants Versus Jagdish and others .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Kul Bhushan Sharma, Advocate for the appellants Mr. Shiv Kumar, Advocate for respondent No. 1 Mr. Ram Bilas Gupta, Advocate for respondents No. 2 to 4 -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. Respondent No. 1 filed a suit for specific performance with consequential relief of permanent injunction and possession against Hira Lal, Sohan Lal and Virpal-defendants on 03.05.2002, for enforcing the agreement to sell dated 12.04.2001. After hot contest, a compromise was effected between the parties, Ex CI, on 31.07.2003. In view of the aforesaid compromise, the Lok Adalat passed the award dated 12.11.2005. The decree holder filed an execution petition for executing the decree. The objector/appellant filed objection petition ESA No. 13 of 2009 2 against the execution of the decree, which was dismissed. The present appeal has been filed by the appellants, raising the following arguments:- (i) that they are owner in possession of the land in question registered vide sale deed dated 25.10.2005 and tatima sale deed 11.11.2005, on the basis of the agreement to sell dated 16.03.1994, entered into between objectors/appellants and the judgement debtors, no one to collusive decree could claim execution of such decree as doctrine of lis pendens is not applicable; (ii) that because the question of title has arisen inter se the parties regarding land in question, in view of the submissions made above, therefore, the courts below have erred in law in not framing the issues and not affording the opportunity of leading the evidence, and further erred in law in rejecting the objections summarily; and (iii) that in view of Order 21 Rule 101 of the Code of Civil Procedure, all questions relating to the title shall be determined by a court dealing with the application and not by a separate suit and for this purpose, the court shall be deemed to have jurisdiction to decide the such questions and hence, his application should have been tried like a suit. In order to support his arguments, learned counsel for the appellants relied on the judgements rendered in the cases of 'Avtar Singh v. Gurjit Kaur (widow) and others' Vol. CXIV-(1996-3) The Punjab Law Reporter 567, 'Gram Panchayat, Hissanpur v. Jagdish Chand and others', 2008 (1) Civil Court Cases 364 and 'Nagubai Ammal and others v. B. Shama ESA No. 13 of 2009 3 Rao and others, 1993 (suppl.) Civil Court Cases 412 (SC). From the arguments so raised by learned counsel for the appellants, it has transpired that the following facts are admitted:- a) An agreement to sell was entered between the respondents and vendor on 12.04.2001; b) A suit was filed by respondents against the vendor on 03.05.2002; c) A compromise was effected between the parties on 31.07.2003 and award on the basis of the said compromised was passed by the Lok Adalat on 12.11.2005; d) the alleged sale deed was executed on 25.10.2005 on the basis of the agreement to sell dated 16.03.1994 entered into between objectors/appellants and the judgement debtors. It is obvious from the aforementioned facts that the appellants entered into sale deed during the pendency of the suit and in fact just one month before passing of the decree. Now taking up the first argument raised by learned counsel for the appellants that the decree was a collusive decree and hence the doctrine of lis pendens would not apply to the transaction in question, deserves to be rejected, inasmuch as, the suit was not a collusive at the time of filing. The suit was hotly contested, which was filed on 03.50.2002, whereas a compromise was effected between the parties on 31.07.2003. Thus, the parties arrived at a compromise only subsequently. Such a decree in terms of the compromise would not mean a collusive decree, and hence, reliance placed on a judgement in the cases of Nagubai Ammal's (supra) will not be applicable in the facts and circumstances of the present case. The second and third arguments raised by the learned counsel for ESA No. 13 of 2009 4 the appellant that in view of Order 21 Rule 101 and case law cited, issues should have been framed and his application should have been decided like a suit, as no separate suit is maintainable, too, cannot sustain, in view of the fact that the appellants, themselves,moved an application under Order 21 Rule 97 of the Code of Civil Procedure. Rule 97 CPC under which the appellants moved the application reads as follows:- “97. Resistance or obstruction to possession of immovable property:- (1) where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) where any application is made under sub rule (1), the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. (3) The provisions of Section 5 of the Indian Limitation Act, 1908 shall apply to the applications under this rule.” The appellants are not a decree holder and were not eligible to move the application under the rule. Even if it is held that the appellants could move an application under this rule, Rule 102 CPC will come in their way in the facts of the present case. Having held that doctrine of lis pendens applies, the appellants are barred from raising the objections, as is apparent from reading of the Order 21, Rule 102 reproduced below:- “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 ESA No. 13 of 2009 5 immovable property by a person to whom the judgement-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.” This is substantiated by the law laid down by the Apex Court in the case of 'Silverline Forum Pvt. Ltd. v. Rajiv Trust, 1998 (1) RCR (Rent) 394 (SC), which observes as follows:- “where the resistance is caused or obstruction is offered by a transferee pendente lite, the scope of adjudication is confined to a question whether he was a transferee during the pendency of a suit in which the decree was passed. Once, the finding is in the affirmative, the Executing Court must hold that he had no right to resist or obstruct and such person cannot seek protection from the Executing Court. The Court stated: “It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree holder. Rule 101 stipulates that all questions “arising between the parties to a proceeding on an application under Rule 97 or Rule 99” shall be determined by the Executing Court, if such, question are “relevant to the adjudication of the application”. A third party to the decree who offers resistance would, thus, fall within the ambit of Rule 101, if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt, if the resistance was made by a transferee ESA No. 13 of 2009 6 pendente lite of the judgement debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act.” A perusal of the Order 21 Rule 102 and the judgement of the Apex Court rendered in Silverline Forum (supra) shows that a third party cannot restrain the decree holder from executing the decree in case the judgement- debtor has transferred the property during the pendency of the litigation. In this context, Hon'ble the Apex Court in a decision rendered in the case of 'Usha Sinha v Dina Ram and others', 2008 (3) R.C.R. (civil) 145 (SC) while relying on the judgement rendered in the case of 'Silverline Forum Pvt. Ltd. v Rajiv Trust', 1998 (1) RCR (Rent) 394 (SC), has laid down the following law in para 21 and 22 of the judgement:- “21. We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum. In our opinion, the doctrine is based on the principle that the person purchasing property from the judgement debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgement debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated. ESA No. 13 of 2009 7 22. 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 judgement 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 XXI.” In view of the foregoing discussion, the appeal is dismissed, being devoid of merits. (Nirmaljit Kaur) Judge July 28, 2009 mohan Whether to be referred to the Reporter: Yes or No