Smt. Santosh Awasthi v. Smt. Urmila Jain

Order 21."

¶21In Sriram Housing Finance and Investment Vs. Omesh Misra Memorial Charitable Trust 2024 (15) SCC 176, Apex Court observed that under Rule 97 of Order XXI it is only the decree holder who is entitled to make an application in case where he is offered resistance or obstruction by any person. Further, Rule 99 pertains to making a complaint to Court against dispossession of immovable property by person in possession of the property by the holder of decree or purchaser thereof.

¶22In the instant case, the application under Order XXI Rule 97 has been moved by a transferee pendete lite/petitioner, who had purchased the property from the plaintiff of Suit No. 151 of 1991 on 12.01.2001, while the suit was decided on 14.10.2003. She never become party to the suit nor to the appeal. In fact Suit No. 341 of 2010 instituted by her was dismissed on 20.09.2022, against which no appeal till date has been filed.

¶23In Silverline Forum Pvt. Ltd. vs. Rajiv Trust & another (1998) 3 SCC 723 the Apex Court while interpreting the words "all questions 9 of 14 arising between the parties to a proceeding on an application under Rule 97" held that it envelopes only such question as would legally arises for determination between those parties. The Court is not obliged to determine a question merely because resister raised it.

¶24The Court further held that question which the executing court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g., if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property.

¶25Rule 102 of Order XXI clearly bars its applicability to transferee pendente lite and the same is extracted hereasunder; "Order 21 Rule 102 CPC 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. Explanation-In this rule, "transfer" includes a transfer by operation of law."

¶26Petitioner before this Court is admittedly a transferee pendente lite and has not denied the factum of purchase of disputed property from Ram Narayan in the year 2001 when both the original Suits No. 33 of 1991 and 151 of 1991 were pending consideration. In view of the judgment rendered by Apex Court in case of Shingara Singh (Supra), Siddamsetty Infra Projects Pvt. Ltd. (Supra), Sriram Housing Finance and Investment (Supra) and the judgment rendered in Silverline Forum Pvt. Ltd. (Supra), petitioner being a transferee pendente lite cannot maintain application under Rule 97 of Order XXI and is bound by the decree, and further barred by Rule 102 of Order XXI. 10 of 14

¶27Further, petitioner has not denied the rejection of his impleadment application during execution proceedings and, thereafter, dismissal of the suit instituted by her in the year 2010. Once such is a situation petitioner has to justify maintaining her application under Order XXI Rule 97 CPC.

¶28Question which arises for consideration, at this juncture, is whether the executing court was justified in passing the order dated 16.05.2024 when objections were raised by decree holder Urmila Jain as to the maintainability of the application under Order XXI Rule 97 and the same being barred by the provisions of res judicata. Admittedly, executing court had framed the issue of res judicata but had proceeded to hold that the said issue would be decided after considering the evidences at final stage.

¶29Looking to the settled legal proposition and provisions of Rule 102 once it is an admitted case that petitioner is a transferee pendente lite the executing court should not have proceeded with the application any more and at the very first instance should have decided the objections raised by decree holder in the light of the doctrine of lis pendens and Rule 102. In case the issue of res judicata was framed by the executing court it should have decided and not waited for taking any evidence further and postponing it.

¶30The law is settled as far as doctrine of lis pendens is concerned, once it is admitted to a party that he has purchased the property during pendency of the suit, then such transfer is hit by provisions of Section 52 of the Transfer of Property Act. If such is the case the application under Order XXI Rule 97, at the very first instance, was not maintainable. The executing court had wrongly dragged the matter for almost 10 years from the year 2014 to 2024 in keeping the application pending filed under Order XXI Rule 97 CPC.

¶31However, considering the argument raised by petitioner's counsel as to the maintainability of civil revision against the order dated

16.05.2024, I find that it was not a case decided and only the executing 11 of 14 court after framing the issue of res judicata had postponed the matter to be decided at the final stage. In case the revision was entertained by the revisional court and had found that the issue of res judicata was to be adjudicated first, it should have remanded the matter to the executing court for deciding it first. The revisional court should not have exceeded its jurisdiction and rejected the application filed under Order XXI Rule 97 CPC itself once the application was pending before the executing court.

¶32Reliance placed upon the various decisions of Apex Court does not help the respondent counsel as the judgment relied upon in case of Surya Dev Rai Vs. Ram Chander Rai 2003 (6) SCC 675, Radhey Shyam and another Vs. Chhabi Nath and others 2009 (5) SCC 616, clearly hold that the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion.

¶33In the instant case the revisional court had assumed the jurisdiction of executing court and dismissed the application filed under Order XXI Rule 97, though observing that the issue of res judicata should have been decided first. The revisional court at the most could have remanded the matter with certain directions, it cannot assume the role of a executing court while exercising revisional jurisdiction, as the order dated

16.05.2024 does not fall in the category of case decided.

¶34After giving thoughtful consideration, I find that the revisional court had exceeded its jurisdiction by dismissing the application filed under Order XXI Rule 97 by the petitioner before the executing court while exercising revisional jurisdiction under Section 115 CPC. However, the executing court has also failed in its endeavour to decide the execution case pending before it since the year 2014, and after framing the issue of res judicata had postponed the matter to be decided at the final stage.

¶35In such a case where it is an admitted fact that the property was transferred during pendency of the suit and petitioner is a transferee 12 of 14 pendente lite and hit by provisions of Section 52 of the Transfer of Property Act, the executing court should have, at the very outset, proceeded to pass the order in pursuance of Rule 102 CPC.

¶36Recently, on 06.03.2025, the Supreme Court in Periyammal vs. V. Rajamani, Civil Appeal No. 3640-3642 of 2025 issued necessary directions for the executing court throughout the country for expediting the execution proceedings, relying upon the earlier decisions. Relevant paragraphs are extracted hereasunder:- "72. Before we close this matter, we firmly believe that we should say something as regards the long and inordinate delay at the end of the Executing Courts across the country in deciding execution petitions.

¶73It is worthwhile to revisit the observations in Rahul S. Shah (supra) wherein this Court has provided guidelines and directions for conduct of execution proceedings. The relevant portion of the said judgment is reproduced below: "42. All courts dealing with suits and execution proceedings shall mandatorily follow the below mentioned directions:

42.1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order 10 in relation to third-party interest and further exercise the power under Order 11 Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third-party interest in such properties. ***

42.5. The court must, before passing the decree, pertaining to delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property. ***

42.8. The court exercising jurisdiction under Section 47 or under Order 21 CPC, must not issue notice on an application of third party claiming rights in a mechanical manner. Further, the court should refrain from entertaining any such application(s) that has already been considered by the court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.

42.9. The court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.

42.10. The court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to sub-rule (2) of Rule 13 of 14 98 of Order 21 as well as grant compensatory costs in accordance with Section 35-A. ***

42.12. The executing court must dispose of the execution proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay. *** (Emphasis supplied)

¶74The mandatory direction contained in Para 42.12 of Rahul S. Shah (supra) requiring the execution proceedings to be completed within six months from the date of filing, has been reiterated by this Court in its order in Bhoj Raj Garg v. Goyal Education and Welfare Society, Special Leave Petition (C) Nos. 19654 of 2022."

¶37Considering the facts and circumstances of the case, the order dated

05.08.2024 passed by Additional District Judge, Court No. 1, Jhansi in Civil Revision No. 59 of 2024 as well as the order of executing court dated 16.05.2024 passed in Misc. Case No. 6 of 2024 are hereby set aside. The matter is remanded to the executing court to pass necessary orders on the application moved under Order XXI Rule 97 CPC by the petitioner in accordance with law keeping in mind the decisions of Apex Court rendered in cases of Shingara Singh (Supra), Siddamsetty Infra Projects Pvt. Ltd. (Supra), Sriram Housing Finance and Investment (Supra), Silverline Forum Pvt. Ltd. (Supra) and Periyammal (Supra) as well as Rule 102 CPC and considering the doctrine of lis pendens, within a period of one month from the date of receipt of a certified copy of this order.

¶38With the aforesaid directions, writ petition stands disposed of. Order Date :- 11.3.2025 Shekhar 14 of 14 High Court of Judicature at Allahabad

AFR Reserved Court No. - 9 Case :- MATTERS UNDER ARTICLE 227 No. - 11807 of 2024 Petitioner :- Smt. Santosh Awasthi Respondent :- Smt. Urmila Jain Counsel for Petitioner :- Rama Goel Bansal,Shalini Goel Counsel for Respondent :- Arvind Srivastava Hon'ble Rohit Ranjan Agarwal,J. 1. Heard Ms. Rama Goel Bansal, learned counsel for petitioner and Sri Arvind Srivastava, learned counsel for respondents. 2. This writ petition under Article 227 of Constitution of India has been filed assailing the order dated 05.08.2024 passed by Additional District Judge, Court No. 1, Jhansi in Civil Revision No. 59 of 2024. 3. Facts, in brief, leading to filing of present petition are that one Malti Devi was the original owner of property in question. She had sold 1.8 Acres of land to one Roop Chand Jain, which includes the property in dispute. On 03.12.1976 Roop Chand Jain carved out different plots from the property purchased by him and sold one part to one Sushila Kumari, wife of Ram Narayan. In the sale deed plot number was mentioned as '767'. 4. Similarly, on 20.05.1979 Urmila Jain purchased an area of 9 decimal of plot no. 776 from Malti Devi. She also purchased plot nos. 771, 770, 772, 773, 774, 775, 768 and 766 total measuring 2.5 Acres. Sushila Kumari expired some time in the year 1986, she was survived by her husband Ram Narayan Verma and sons Naveen Prakash, Anand Prakash, Ratnesh Verma and Rajesh Verma. Urmila Jain filed a suit for permanent injunction on 28.01.1991 which was registered as Suit No. 33 of 1991 against Ram Narayan and his sons in respect of plot no. 776 and 1 of 14 771. On 30.01.1991 Ram Narayan filed an affidavit that Smt. Sushila Kumari had purchased part of plot no. 767 measuring 25 x 50 feet and 25 x 50 feet. The trial court had granted temporary injunction in favour of Urmila Jain and restrained the defendants from interfering in peaceful possession of plaintiff in respect of plot no. 776 and 771. 5. On 21.01.1991 a correction deed/titimma was executed by Power of Attorney holder of Roop Chand Jain in favour of Ram Narayan and plot no. 767 was changed to 776. On 16.04.1991 Ram Narayan alongwith his sons filed Suit No. 151 of 1991 for relief of permanent injunction against Prakash Chand Jain, Kailash Chand Jain and Urmila Jain in respect of plot no. 21, 22 and over plot no. 776. An application for grant of temporary injunction was moved which was rejected by the trial court, against which a miscellaneous appeal was preferred by Ram Narayan which was dismissed on 17.05.2000. Both, the Original Suit No. 33 of 1991 and 151 of 1991 were clubbed together. During pendency of both the suits, Ram Narayan executed a sale deed in respect of property in dispute in both the suits to one Smt. Santosh Awasthi on 12.01.2001. Smt. Santosh Awasthi got map sanctioned from Jhansi Development Authority on 23.01.2002. 6. Original Suit No. 33 of 1991 filed by Urmila Jain was decreed on 14.10.2003, while the suit filed by Ram Narayan being Suit No. 151 of 1991 was dismissed. Ram Narayan filed Civil Appeal No. 96 of 2003 against the judgment dated 14.10.2003. The said appeal was dismissed on 13.04.2010. Urmila Jain on 16.12.2010 filed Execution Case No. 40 of 2010, in the said execution case Smt. Santosh Awasthi filed an impleadment application on 17.01.2011. The said application was dismissed in default on 04.08.2012, a recall application was moved which was again dismissed on 18.09.2013. Another recall application was moved on 19.10.2013 to recall the order dated 18.09.2013 which was rejected on merits on 22.01.2014. 2 of 14 7. Petitioner, Smt. Santosh Awasthi, on 21.07.2010 instituted Suit No. 341 of 2010 for the same relief for which Suit No. 151 of 1991 was filed by Ram Narayan. The said suit was dismissed on 20.09.2022. During pendency of Suit No. 341 of 2010 petitioner Smt. Santosh Awasthi filed application under Order XXI Rule 97 CPC which was registered as Misc. Case No. 6 of 2014. The said application was contested by Urmila Jain, w