1 AO 117 OF 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 117 OF 2010 1. Bhagwat s/o Baburao Bhutkar, Aged 56 years, Occupation Doctor, Resident of Dongargan, Taluka Nagar, District Ahmednagar. 2. Vitthal s/o Bhausaheb Dhamne, Aged 61 years, Occupation Agriculture, Resident of Sarola Kasar, Taluka Nagar, District Ahmednagar. Appellants V E R S U S 1. Chunilal Punram Solanki, Aged 46 years, Occupation Agriculture and Business, 2. Champalal Punram Solanki, Aged 34 years, Occupation Agriculture and Business, 3. Suresh Kisansing Purohit, Aged 39 years, Occupation Agriculture and Business, 4. Bharatsing Dausing Purohit, Aged 40 years, Occupation Agriculture and Business, All resident of Kalanagar, Savedi, Ahmednagar, Taluka and District Ahmednagar. 5. Shantabai Bansi Sumbe, Aged 56 years, Occupation Agriculture, 6. Ambadas Baburao Wabale, Aged 61 years, Occupation Agriculture, Respondents 2 AO 117 OF 2010 7. Kausabai Ramdas Zine, Aged 51 years, Occupation Agriculture, 8. Gangubai Vilas Thange, Aged 46 years, Occupation Agriculture, 9. Kisan Baburao Wabale, Aged 66 years, Occupation Agriculture, Respondents No. 5 to 9 resident of Savedi, Ahmednagar, Taluka and District Ahmednagar. Mr. R.N. Dhorde, Advocate, holding for Mr. V.R. Dhorde, Advocate for the appellants Mr. A.K. Gugale, Advocate for respondents No. 1 & 2 Mr. Shrikishan Shinde, Advocate for respondents No. 3 & 4 Remaining respondents though served, absent CORAM : A.V. NIRGUDE, J. DATED : 14th February, 2011 ORAL JUDGMENT 1. This appeal is filed against the Judgment and order passed by the learned District Judge - 3, Ahmednagar, in Regular Civil Appeal No. 148 of 2009. 2. The present appellants are decree-holders in Regular Civil Suit No. 68 of 1983. This was a suit for specific performance. It was filed against the respondents No. 5 to 9. The suit was resisted till the decree passed by the trial Court was confirmed. The litigation in the suit ended before the Supreme Court some time in 2000. However, before that in 1999, the appellants/decree-holders had already initiated execution of the decree. During the pendency of this execution, the respondents No. 1 to 4 moved their application under Order XXI Rule 97 of Code of Civil Procedure saying that they had 3 AO 117 OF 2010 purchased the suit property from one Saleem in 2007. They further stated that Saleem had purchased the suit property from the predecessor of the respondents No. 4 to 9 some time in 2002. They said that they purchased the suit property for value without notice of the pendency of the litigation. They said they were not aware of the decree passed, and so, the Court should determine their right to the suit property, and only after that, the execution should proceed. The appellants/decree-holders opposed this application mainly on the ground that the respondents No. 1 to 4 had no right whatsoever to the suit property since they and their predecessor-in-title had purchased the suit property during pendency of the litigation. The learned Judge of the trial Court without framing issues and without recording evidence rejected the application of respondents No. 1 to 4. 3. The respondents No. 1 to 4 then went to the appellate Court and mainly complained that their application under Order XXI Rule 97 of the Civil Procedure Code could not have been dismissed without adjudicating upon their right in proper manner. They contended that the executing Court was duty bound to treat their application as a suit, frame necessary issues and then allow the parties to lead evidence. The learned Judge of the appeal Court accepted this contention and remanded the case back. This Judgment and order has been challenged in this appeal from order. 4. As said above, the respondents No. 1 to 4 came with a clear case admitting that they are purchasers of the suit property from one Saleem, who had purchased the suit property during the pendency of the litigation. The only thing that they contended is that they were purchasers for value without notice of the litigation. The question is, 4 AO 117 OF 2010 whether the executing Court/trial Court was under obligation to examine the factual aspect of the case as to whether they were purchasers for value without notice to the litigation. The answer is in negative. In other words whether such application deserves to be determined as if it is a suit. The answer is in negative. 5. In order to elaborate this, one must read the provisions of Order XXI Rule 97 to Rule 106 of the Civil Procedure Code. Our Court has deleted Rule 102, but added a proviso to the Rule 100. Rules 97 to 106 of Order XXI of the Civil Procedure Code deal with resistance or obstruction to delivery of possession to decree-holder or purchaser. 6. Rule 97 enables the decree-holder or auction purchaser to complain to executing Court if he is resisted or obstructed in obtaining possession of such property by "any person". The Court on receipt of such application will proceed to adjudicate it. It is also now settled Law that any person, who is interested in obstructing the execution of the decree, would also be able to file his application under Rule 97 for getting adjudication upon his right to the property. Rule 101 requires the Court to make full-fledged inquiry and determine all questions relating to right, title and interest in the property. The Court will then pass an order upon such adjudication. Rule 99 permits any person other than the judgment-debtor who is dispossessed by the decree- holder or auction-purchaser to make an application to executing Court complaining such dispossession. The Court, on receipt of such application, will proceed to adjudicate upon it. Original Rule 102 of the Civil Procedure Code, which is deleted for the State of Maharashtra, reads as under : 102. Rules not applicable to transferee pendente lite – 5 AO 117 OF 2010 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. Explanation – In this rule, “transfer” includes a transfer by operation of law. Rule 100 with the proviso added by the Bombay High Court, reads as under : 100. Order to be passed upon application complaining of dispossession – Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination, - (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application ; or (b) pass such other order as, in the circumstances of the case, it may deem fit. High Court Amendment (Bombay) – Add the following proviso to rule 100 ; - “Where it is determined that the application is made by person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed, the Court shall dismiss the application under sub-rule (a) above.” 7. Both Rule 102 or proviso to Rule 100 are made for common purpose. 8. The Supreme Court in the case of Usha Sinha v. Dina Ram and others - (2008) 7 Supreme Court Cases 144 held as under : 17. Rule 102 clarifies that Rules 98 and 100 of Order 6 AO 117 OF 2010 XXI 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 recognizes the doctrine of lis pendens recognized by Section 52 of the Transfer of Property Act, 1882. Rule 102 of Order XXI 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 never be able to realize 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. 9. In the same Judgment, the Supreme Court reviewed the Law on this subject, as to whether a transferee from a Judgment-debtor has any right to resist a decree, and held as under : 7 AO 117 OF 2010 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 Rule 98 or 100 of Order XXI. 10. In view of this, there was no reason for the execution Court/trial Court to deal elaborately with the application made by the respondents No. 1 to 4. The moment they admitted that they claim through the judgment-debtor, there was no need to go further and examine whether they are purchasers for value without notice to the litigation. 11. The respondents No. 1 to 4 tried to suggest that they had taken search in the office of Sub-Registrar to find out whether there was any encumbrance on the property, and since they did not find anything, they bonafide believe that the title of the vendor was clear. This contention is obviously made because there is now possibility 'Lis pendens' notice being registered. But, such registration is optional. So, the respondents No. 1 to 4 were not entitled to any elaborate hearing before the executing court. Their application deserved to be dismissed in limini, on the day on which it was made. The learned Judge of the execution Court was not even required to give notice to 8 AO 117 OF 2010 the decree-holder. All that, he was to examine was the contents of such application. If the contents of such application showed to him that the respondents No. 1 to 4 are transferees of the property pending the litigation, he could have held that they had no right to resist or obstruct the execution of the decree. 12. The learned Advocate appearing for the respondents No. 1 to 4 tried to suggest that the respondents could have raised a question, as to whether the original decree was obtained by collusion or otherwise. Such a submission is beyond the scope of his clients’ application itself. His client did not raise such plea in his application. The appeal should therefore succeed. The appeal is allowed. The Judgment and decree passed by the learned District Judge – 3, Ahmednagar, in Regular Civil Appeal No. 148 of 2009, dated 29th June, 2009, stands set aside. In view of disposal of Appeal From Order, Civil Application No. 12523 of 2010 stands disposed of. ( A.V. NIRGUDE, J. ) SRM/ao/117/10/14/2/11/ok