Judgment:
- 1 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE13H DAY OF SEPTEMBER, 2024 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH WRIT PETITION No.108019 OF2023(GM-CPC) BETWEEN: SRI. RAOJI S/O. DEVAJI PATEL, AGE:
69. YEARS, OCC: NIL, R/O. H.NO.1, SIDDESHWAR NAGAR, UNKAL CROSS, HUBALLI, PIN-580031. ...PETITIONER (BY SRI. ANAND R. KOLLI, ADVOCATE) AND:
1. SMT. K.M. SAVITHRIDEVI, SINCE DEAD BY HER LR’S. 1A. SHRI K.M. JAGADISH S/O. SAVITHRIDEVI, SINCE DECEASED, REPRESENTED BY HIS WIDOW SMT. SULOCHANA W/O. K.M. JAGADISH, AGE:
64. YEARS, OCC: HOUSEHOLD WORK, R/O. DOOR NO.17, 2ND CROSS, 2ND MAIN, ANNAPURNESHWARI LAYOUT, J.P. NAGAR, 7TH PHASE, BENGALURU, PIN-560062. 1B. SHRI K.M. BASAVARAJ @ BHUVANESH S/O. SAVITHRIDEVI, AGE:
64. YEARS, OCC: R/O. 571 , 6TH MAIN, 9TH CROSS, SADASHIVANAGAR, BENGALURU, PIN-560056. 1C. SMT. JAYASHREE D/O. SAVITHRIDEVI W/O. VIJAYKUMAR, SINCE DEAD BY HER LR’S1C1) SHRI VIJAYAKUMAR S/O. GURUBASAYYA KASHIMATH, AGE:
68. YEARS, OCC: RETIRED OFFICIAL, R/O.#412, BLOCK “C” NANDI CITADELL, NOBEL RESIDENCY ROAD, AKSHAYANAGAR, - 2 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 CHANDRASHEKARAPUR, BENGALURU, PIN-560076. 1(C2) SHRI VARUNDEV S/O. VIJAYAKUMAR KASHIMATH, AGE:
37. YEARS, OCC: SOFTWARE ENGINEER, R/O.#412, BLOCK “C” NANDI CITADELL, NOBEL RESIDENCY ROAD, AKSHAYANAGAR, CHANDRASHEKARAPUR, BENGALURU, PIN-560076. 1(C3) SHRI SHARATHCHANDRA S/O. VIJAYAKUMAR KASHIMATH, AGE:
31. YEARS, OCC: SOFTWARE ENGINEER, R/O.#412, BLOCK “C” NANDI CITADELL, NOBEL RESIDENCY ROAD, AKSHAYANAGAR, CHANDRASHEKARAPUR, BENGALURU, PIN-560076. 1D. SMT. VIJAYASHREE D/O. SAVITHRIDEVI W/O. H.M. RUDRESH, AGE:
60. YEARS, OCC: HOUSEHOLD WORK, R/O. #597, “SHANTA” 3RD CROSS, 4TH MAIN , 7TH PHASE , R.B.I. LAYOUT, J.P. NAGAR, BENGALURU, PIN-560078.
1. RAJASHEKARAYYA SINCE DEAD BY HIS LR’S. 1A. SMT. MUKTABAI W/O. RAJASHEKARAYYA ULAGADDIMATH, AGE:
75. YEARS, OCC: HOUSEHOLD WORK, R/O. ULLAGADDI ONI, HUBBALLI, PIN-580020. 1B. SRI. VISHWAPRAKASH S/O. LATE RAJASHEKARAYYA, SINCE DEAD BY HIS LR’S. SMT. SUNITHA, W/O. LATE VISHWAPRAKASH, AGE:
49. YEARS, OCC: BUSINESS, R/O. NO.10, VISHWAPRAKASH TARGET TOOLS, ULLAGADDIMATH ONI, HUBBALLI, PIN-580020. 1C. SMT. SHARADABAI W/O. N.J.
RUDRAPRAKASH, AGE:
50. YEARS, OCC: HOUSEHOLD WORK, - 3 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 R/O. SIDDAGANGA OIL EXTRACTS, No.BHATAWADI, NEAR APMC YARD, TUMKUR, PIN-572101. 1D. SRI SHASHIDHAR S/O. RAJASHEKARAYYA ULLAGADIMATH, AGE:
53. YEARS, OCC: BUSINESS, R/O. ULLAGADDIMATH ARMS AND AMMUNITION DEALER, 10/1, ULLAGATTIMATH ROAD, HUBBALLI, PIN-580020.
2. SMT. RATHNAPRABHA W/O. R. RAIKAR, AGE:
57. YEARS, OCC: BUSINESS, R/O. SRI KAMAKSHI JEWELERS, DOOR NO.44/1, 4TH CROSS, MALLESHWARAM , BENGALURU, PIN-560003.
3. SEEMUBAI SINCE DEAD BY HER LRS3. DEFENDATS NO.1(A) AND1D) ALREADY ON RECORD.
4. SRI. K.M. OMPRAKASH S/O. SAVITHRIDEVI, AGE:
69. YEARS, OCC: BUSINESS, R/O. NO.567 , 21ST MAIN, 4TH BLOCK, NEAR SUDHANARAYANA MURTHY, INFOSYS HOUSE JAYANAGAR, BENGALURU, PIN-560001. ..RESPONDENTS (BY SRI. B.S. KUKANAGOUDAR, ADV. FOR R1(A), R1(B), R1(C1), R1(C2), R1(C3), R1(D); R1(1A), R2 & R4 ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER
DATED2311.2023 PASSED BY THE IST ADDITIONAL SENIOR CIVIL JUDGE HUBBALLI IN EP NO.196/2022 THEREBY DISMISSING THE INTERLOCUTORY APPLICATION No.V FILED U/O XXI RULE97AND101OF CPC FILED BY THE PETITIONER/OBSTRUCTER MARKED AS ANNEXURE-F IN THE INTEREST OF JUSTICE AND EQUITY.-. 4 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER
S ON3008.2024, COMING ON FOR PRONOUNCEMENT OF ORDER
S THIS DAY, THE COURT MADE THE FOLLOWING: CAV ORDER
(PER: HON’BLE MR. JUSTICE H.P. SANDESH) The relief sought in the writ petition is to issue a writ in the nature of certiorari to quash the impugned order dated 23.11.2023 passed by I Addl. Senior Civil Judge, Hubballi in E.P.no.196/2022 thereby dismissing the I.A.No.V filed under Order XXI rule 97 and 101 of Code of Civil Procedure, 1908 (for short, ‘CPC’) as per Annexure-F and such other writ or order or direction as this Court deems fit in the facts and circumstances of the case.
2. The factual matrix of the case of the petitioner is that he had filed a suit bearing O.S.No.91/2000 for the relief of specific performance and the said suit was decreed vide Annexure-A on 21.12.2000. The respondents herein had filed a Miscellaneous Appeal No.21554/2008 as against the orders passed in Miscellaneous Appeal and also for the limitation and this Court had allowed the appeal and remanded the matter on 25.07.2014 vide Annexure-B. The respondents - 5 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 herein had filed Execution Petition No.196/2002 which is produced as Annexure-C. The petitioner had filed obstructer application under Order XXI Rule 97 read with 101 of CPC and prayed the Trial Court to determine the rights of the applicant and the application in I.A.No.V is also produced as Annexure-D. The respondents had filed objections to I.A.No.V vide Annexure-E. The Trial Court had dismissed the said application filed by the petitioner in terms of Annexure-F vide order dated 23.11.2023 and hence, the petitioner has filed this Writ Petition having no alternative remedy.
3. The main ground urged in the petition that the Trial Court ought to have allowed the application and impugned order is not sustainable in the eye of law. The Trial Court had failed to take note of the intention of the legislation of Order XXI Rule 97 and 101 of CPC and erroneously dismissed the same in spite of this Court had allowed M.F.A.No.21554/2008 and the respondents are parties to the proceedings and the subject matter of the said suit and the present suit are one and the same. It is contended that once the rights of the parties have already - 6 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 been confirmed by this Court and further after the order of remand, they have not taken any steps for reopen the matter so the defence taken by the judgment debtor in respect of collusion will not hold good so rights of the plaintiff in O.S.No.91/2000 are to be decided in accordance with law and the Trial Court fails to adjudicate the claim of the petitioner and in spite of adjudicating the same, without recording the evidence, dismissed the application. Hence, it requires interference.
4. The counsel for the petitioner in support of his argument, relied upon the judgment of the Hon’ble Apex Court in the case of Jini Dhanrajgir and another Vs. Shibu Mathew and another etc.1and brought to the notice of this Court the discussion made in paragraph 22 wherein considering the scheme of Order XXI Rules 97 to 106, relied upon the judgment in Silverline Forum Pvt. Ltd. v. Rajiv Trust & another reported in 1998 SAR (Civ) 288 wherein it is held that it is clear that executing court can decide whether the resistor or obstructer is a person bound by the 1 2023 Supp. SAR (Civ) 556 - 7 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course, the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary. The counsel also brought to the notice the paragraphs No.27, 28, 30 and also 31 wherein the discussion was made and held that the Executing Court shall proceed to deal with the application of the Appellants under Rule 97 of Order 21 of the CPC together with the objections raised by the Respondents on their own merits and without being influenced by any observation made in this order.
5. The counsel also relied upon the judgment of the Hon’ble Apex Court in the case of Smt. Ved Kumari (Dead through her legal representative) Dr. Vijay Agarwal vs. Municipal Corporation of Delhi through its - 8 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 Commissioner2 wherein also the judgment referred supra was discussed and in para 15 of the judgment held that the Executing Court could not have dismissed the execution petition by treating the decree to be inexecutable merely on the basis that the decree-holder has lost possession to a third party/encroacher. If this is allowed to happen, every judgment-debtor who is in possession of the immoveable property till the decree is passed, shall hand over possession to a third party to defeat the decree-holder’s right and entitlement to enjoy the fruits of litigation and this may continue indefinitely and no decree for immovable property can be executed.
6. The counsel also relied upon the judgment of the Hon’ble Apex Court in the case of Sameer Singh and another Vs. Abdul Rab and others3wherein also the Hon’ble Apex Court while dealing with whether court had passed a decree against which appeal would lie under CPC and therefore, petition under Article 227 not maintainable 2 SLP (C) Nos.12601-12602/2017 disposed of on 24.08.2023 3 (2015) 1 SCC379- 9 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 where executing court does not adjudicate upon lis between parties under Order 21 Rule 101 CPC on ground that it has become functus officio and thereby lost jurisdiction, order passed by it cannot be deemed to be a decree under Order 21 rule 103 CPC.
7. The counsel also relied upon the judgment of the Hon’ble Apex Court in the case of Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and another4 referring this judgment, the counsel would contend that resistance offered by the appellant stranger occupying the decretal premises and asserting his own right and right of appellant obstructionist in possession to be heard and his alleged right to the property to be adjudicated upon objections of the appellant on merits under Rue 97(2) read with Rule 101 and 98 instead of insisting upon first handing over possession and then moving of application by the appellant under Rule 99. 4 (1997) 3 SCC694- 10 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 8. The counsel also relied upon the judgment of the Hon’ble Apex Court in the case of Bhanwar Lal and Satyanarain and another5 wherein it is held that Rule 35(3) applies where the person resisting execution fo the decree is bound by the decree whereas Rule 97 applies where ‘any person’ resists execution of the decree and application filed by the appellant therein under Rule 97 on 18.07.1979, the same dismissed by executing Court as barred by limitation and the same day a third application made under Rule 97 also dismissed as barred by res judicata and held that the application dated 25.05.1979 should have been treated as one under Rule 97(1) and none application not barred by limitation and question of res judicata then would not arise.
9. The counsel also relied upon the judgment of the Hon’ble Apex Court in the case of Shreenath and another Vs. Rajesh and others6 wherein discussion is made with regard to Order 21 Rule 97(1) and (2), 101, 98, 99, 100 and 5 (1995) 1 SCC66 (1998) 4 SCC543- 11 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 103 and held that the maintainability of such application/objection is not affected by the provisions of amended Rule 99 or unamended Rule 100 and – words “any person” occurring in Rule 97(4) held that include even persons not bound by the decree-words and phrases-“any person”. The words “any person” it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger. Hence, the counsel for the petitioner prayed to allow the Writ Petition.
10. Per contra, counsel appearing for the respondent would vehemently contend that the Trial Court has not committed any error on factual aspects. He would contend that when the respondent had filed the suit for the relief of partition in the year 1992, the same was decreed on 12.06.1995. The alleged agreement in favour of the petitioner is dated 22.01.1996 i.e., subsequent to the decree and the same is also an ex parte decree and the said suit was decreed in the year 1999 and he kept quite for a period - 12 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 of 22 years and he comes with an obstruction application in the Execution Petition, when the Execution Petition is filed for taking possession. He would also contend that in view of the preliminary decree in the year 1995, the FDP is filed and FDP is allowed and the property is also allotted in favour of the respondent. The counsel would vehemently contend that Rule 102 and 103 are very clear with adjudicatory process. Rule 102 is clear with regard to Rule 98 and 100 do not applicable to transferee pendente lite and 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. Transfer includes a transfer by operation of law. The counsel would contend that Rule 103 is very clear that where any application has been adjudicated upon under rule 98 or 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.-. 13 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 11. The counsel in support of his argument, relied upon the judgment of the Hon’ble Apex Court in the case of Usha Sinha Vs. Dina Ram and others7 while dealing with obstruction by purchaser pendente lite, object and scope of order 21 rule 102 restated and it is based on justice, equity and good conscience and a transferee from a judgment debtor is presumed to be aware of the proceedings before a court of law and it recognizes the doctrine of lis pendens Section 52 of the transfer of property act, 1882 and held that if unfair, inequitable or underserved protection is afforded to a transferee pendente lite, a decree holder will never be able to realize the fruits of his decree.
12. The counsel also brought to the notice of this Court that a reference is made in the very same judgment in the case of Sarvinder Singh vs Dalip Singh and others8 wherein held that the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. 7 (2008) 7 SCC1448 (1996) 5 SCC539- 14 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 13. The counsel also relied upon the judgment of this Court in the case of M.S. Khalid and others Vs. K.R. Rangaswamy and others9 wherein discussion was made wth regard to Section 96 of CPC, Order 21 Rules 97, 98 and 103 of Karnataka Civil Rules of Practice, 1967 and Rule 5(b) adjudication of application of an objector under Rule 98 of Order 21 of CPC tantamount to a decree and held that the appeal filed thereon is an appeal under Order 21 rule 103 CPC. It has to be treated as ‘Regular Appeal’ and not as an ‘Execution Appeal’.
14. The counsel also relied upon the judgment of the Hon’ble Apex Court in the case of S. Rajeswari Vs. S.N. Kulasekaran and others10 wherein discussion was made under order 21 Rule 97 and 103 and held that order passed in such proceedings must be treated as a decree against which only an appeal lay to the appellate court, and a revision application, therefore in the light of clear prohibition contained in Section 115(2) would not be maintainable and 9 AIR2003KAR17410 (2006) 4 SCC412- 15 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 revisional court cannot act contrary to express provision of Section 115(2) and entertain revision on ground of cutting short litigation or to avoid injustice.
15. Having heard the petitioner’s counsel and also the counsel for respondent and also the principles of law laid down in the judgments referred supra, the point that would arise for consideration is:
1. Whether the Trial Court has committed an error in dismissing the application filed by the petitioner filed under Order 21 Rule 97 and 101 of CPC and whether the same requires interference?.
16. Having considered the factual aspects, it is admitted fact that the respondents have filed a suit for relief of partition in the year 1992 and the same also came to be decreed in 1995 wherein 1/3rd share has been granted in favour of the respondent. It is not in dispute that FDP is also filed and the same is allowed. Consequently execution petition is filed before the Trial Court to execute the rights conferred upon the respondents. It is also not in dispute that application is filed by the petitioner invoking Order 21 - 16 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 Rule 97 and 101 of CPC and other allied provisions. The factual aspect is also very clear that the petitioner also filed a suit for the relief of specific performance based on the sale agreement executed on 22.01.1996. Hence, it is clear that the vendor of the petitioner who had suffered the judgment and decree of the partition had entered into an agreement of sale with the present petitioner. It is also not in dispute that the said suit was decreed exparte and miscellaneous petition was filed and the same was dismissed on the ground of delay and the same has been challenged before this Court in MFA No.21554/2008 as per Annexure-B and the matter has been remitted back to the Trial Court to dispose of the same on merits.
17. There is no dispute with regard to factual aspect is concerned and it is also not in dispute that the petitioner entered into a sale agreement and obtained the specific performance decree subsequent to the decree passed in favour of the respondent. It is important to note that the petitioner is claiming right based on the subsequent agreement dated 22.01.1996 and there was already a decree - 17 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 in favour of the respondent vide judgment and decree dated 12.06.1995. The said fact is taken note of by the Trial Court while rejecting the application filed by the petitioner herein. Paragraph 9 of the impugned order discloses the factual aspects of the case. So also paragraph 10 discloses with regard to the judgment and decree passed prior to entering into the sale agreement by the petitioner and comes to the conclusion that it is clear transfer by judgment debtor or deceased Sheemubai after not only at institution of suit but also after the decree is passed in that suit against the judgment debtor. It is also important to note that the Trial Court also comes to the conclusion that no one can transfer a better title than he himself possesses “Nemo dat quod non habet”. However, this Rule has certain exceptions and one of them is that the transfer must be in good faith for value and there must be no misrepresentation or fraud, which would render the transaction as void and also that the property is purchased after taking reasonable care to ascertain that the transferee has the requisite power to transfer said land and finally that the parties have acted in good faith as required - 18 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 under Section 41 of Transfer of Property Act, 1882 (for short, ‘TP Act’).
18. No doubt, the counsel appearing for petitioner has relied upon the judgment regarding maintainability of the writ petition and the same is applicable to the case on hand if no adjudicatory process has taken place in view of the judgment in Sameer Singh (supra) in the case on hand also, no adjudicatory process has taken place and not recorded the evidence. Hence, the writ petition is maintainable as contended by the petitioner’s counsel.
19. The judgment relied on by the respondent in Usha Sinha (supra) it is very clear that Order 21 Rules 102, 97, 98 and 100 regarding obstruction by purchaser pendente lite and the scope is also discussed and held that it is based on justice, equity and good conscience and a transferee from a judgment debtor is presumed to be aware of the proceedings before a court of law and it recognizes the doctrine of lis pendens Section 52 of the TP Act and held that if unfair, inequitable or underserved protection is afforded to a - 19 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 transferee pendente lite, a decree holder will never be able to realize the fruits of his decree.
20. In the case on hand, it is also very clear that after the judgment and decree the petitioner entered into an agreement in the year 1996 and the decree was passed in the year 1995 itself in favour of respondent and his vendor has suffered a decree and in spite of it, this petitioner has entered into an agreement and also taking note of the fact that the suit is filed against the judgment debtor and exparte decree was obtained based on the sale agreement which came into effect after the decree. It is also brought to the notice of this Court that though the decree was passed in the year 2000, objector application is filed in 2022 almost after 22 years. It is important to note that in view of the principles laid down in the judgments referred supra, it is held that this obstruction by purchaser pendente lite, the doctrine of lis pendens Section 52 of TP Act is applicable to the facts on hand. No doubt, the counsel also relied upon the judgment in Ved Kumari (supra) wherein also the judgment in Jini Dhanrajgir’s case is discussed. In Jini Dhanrajgir’s - 20 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 case at paragraph 22 discussion was made referring the judgment in Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another. It is very clear that the executing Court can decide whether the resistor or obstructer is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. This discussion goes against the petitioner. In view of the factual aspects of the case that the petitioner has entered into sale agreement subsequent to the decree with one of the defendants who had suffered the decree. In Ved Kumari’s case in paragraph 15 discussion made with regard to Rule 97 to 101 of Order 21 of CPC wherein held that the Executing Court could not have dismissed the execution petition by treating the decree to be inexecutable merely on the basis that the decree-holder has lost possession to a third party/encroacher. If this is allowed - 21 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 to happen, every judgment-debtor who is in possession of the immoveable property till the decree is passed, shall hand over possession to a third party to defeat the decree-holder’s right and entitlement to enjoy the fruits of litigation and this may continue indefinitely and no decree for immovable property can be executed.
21. In the case on hand, the judgment and decree was passed before entering into the sale of agreement and if the same is resisted by the subsequent purchaser who is the obstructer lis pendens Section 52 applies. The said judgment also not comes to the aid of the petitioner. No doubt, the Trial Court has not adjudicated the same by conducting any enquiry and no need of enquiry also in the present case required and there is no dispute with regard to the fact that earlier there was a decree in favour of respondents and subsequently he entered into an agreement of sale and doctrine of lis pendens under Section 52 of TP Act applies.
22. In Usha Sinha’s case, the Hon’ble Apex Court has clearly held that the Court has to take note of the very - 22 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 object and scope of objection by purchaser pendente lite and a transferee from a judgment debtor is presumed to be aware of the proceedings before a court of law. When such being the case, the Apex Court held that if unfair, inequitable or underserved protection is afforded to a transferee pendente lite, a decree holder will never be able to realize the fruits of his decree. This decision is aptly applicable to the case when the petitioner is given protection under Order 21 Rule 97, 98 and 100. It is nothing but scuttling of proceedings in terms of judgment and decree which was passed in the year 1995 itself. A subsequent purchaser when his vendor was not having any right and had suffered a decree, if he conveys any right interest in favour of the present petitioner and the same is also subject to lis pendens Section 52 of TP Act and hence, I do not find any error committed by the Trial Court in dismissing the application and no need of adjudicatory process in view of factual admitted facts available on record.
23. Though the Writ Petition is maintainable to consider the factual aspects are concerned, lis pendens under Section - 23 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 52 of TP Act is applicable to the case on hand. If adjudicatory process by entertaining the same when there is no factual dispute, it will curtail the right of the respondent and the judgments which have been relied upon by the petitioner’s counsel will not come to the aid of the petitioner. Hence, I do not find any merit in the petition to quash the order as sought in the petition and there is no any merit in the writ petition and the same is devoid of merits.
24. Apart from, Section 102 of CPC is also very clear that bars the person who comes before the court for the adjudicatory process when there was a decree and proviso is also very clear that no need of adjudication of process and the Hon’ble Apex Court in the case of Usha Sinha and Servinder Singh held that 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 - 24 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 cannot place reliance either on Rule 98 or Rule 100 of Order XXI. Hence, categorical ratio is laid down in the judgments referred supra and proviso (1) and (2) of Order 21 is also clear that rules not applicable to transferee pendente lite and specifically held that 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. When the said proviso is clear and when Rule 98 and 100 not comes to the aid of the petitioner, question of determination does not arise though counsel would contend that Rule 101 comes to the aid of the petitioner, the same will also not come to the aid of the petitioner in view of Rule 102 and there is no any independent right in favour of the petitioner as claimed. The petitioner purchased the right through the defendant but he had suffered the decree in the earlier judgment and doctrine of lis pendens Section 52 applies. Hence, the Writ Petition deserves to be dismissed.-. 25 - NC:
2024. KHC-D:13123 WP No.108019 of 2023 25. In view of the discussions made above, I pass the following: ORDER
Writ Petition is dismissed. Sd/- (H.P. SANDESH) JUDGE Naa CT-MCK List No.:
1. Sl No.:
9.