SBCWP NO.9665/2009 – KANCHAN DEVI V/S BHANWAR LAL AND ORS. :JUDGMENT DTD.5.12.2009 1/4 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.9665/2008 Kanchan Devi and ors. Versus Bhanwar Lal and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.Suresh Shrimali, for the petitioners Mr.Manish Shishodia, for the respondents. DATE OF JUDGMENT : 5th December, 2009. JUDGMENT 1. Heard the learned counsels. 2. This writ petition is directed against the order dtd.27.11.2008 passed by the learned Executing Court rejecting the application under Section 151 C.P.C. filed by the petitioner. 3. The learned trial Court observed that since the petitioner had purchased the disputed property from one of the plaintiffs Malam Singh, it was subject to Section 52 of the Transfer of Property Act and SBCWP NO.9665/2009 – KANCHAN DEVI V/S BHANWAR LAL AND ORS. :JUDGMENT DTD.5.12.2009 2/4 therefore, Rule 102 of Order 21 C.P.C. does not permit resistance or obstructions to possession by such purchaser. 4. The learned counsel for the respondents Mr. Manish Shishodia relied on the judgment of Hon'ble Supreme Court in the case of Usha Singh V/s Dina Ram and ors. reported in (2008) 7 SCC 144, in which the Hon'ble Supreme Court has held as under: “Bare reading of the Rule 102 of Order 21 CPC 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 recognized by Section 52 TPA. Rule 102 of Order 21 CPC 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 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 SBCWP NO.9665/2009 – KANCHAN DEVI V/S BHANWAR LAL AND ORS. :JUDGMENT DTD.5.12.2009 3/4 transfer the property and the new transferee will offer resistance or cause obstructions. To avoid such a situation, the Rule has been enacted.” 3. On the other hand, Mr. Suresh Shrimali, learned counsel for the petitioners – purchasers of disputed property submitted that the learned Executing Court has erred in rejecting the application under Section 151 CPC without deciding the objections under Order 21 Rule 97 C.P.C. He further submitted that the arguments on the said application are now fixed before the learned Executing Court on 15.1.2010. 4. In view of aforesaid statement, without going into the rival submissions of the learned counsels, this Court considers it expedient to dispose of this writ petition with a direction to the learned Executing Court to decide the objections/application of the petitioners under Order 21 Rule 97 C.P.C. on the next date i.e. 15.1.2010 itself. It is expected that before such decision on the objections on 15.1.2010, the decree-holders will not execute the decree and dispossess the present petitioners before the said date. However, if the said objections are not decided on the said date 15.1.2010, the respondents will be free to execute the decree in accordance with law. SBCWP NO.9665/2009 – KANCHAN DEVI V/S BHANWAR LAL AND ORS. :JUDGMENT DTD.5.12.2009 4/4 5. With these observations, this writ petition is disposed of No order as to costs. (Dr.VINEET KOTHARI)J. Item No.57 Ss/-