Jojy George Koduvath.

O. XXI r. 102, CPC bars placing obstruction by pendente lite transferees

Rule 99 of Order XXI of the CPC says that where any person other than the judgment debtor is dispossessed, he can make an application complaining of such dispossession.

Rule 101 directs that all questions (including questions relating to right, title or interest in the property) arising on the applications under Rule 99 shall be determined by the Court dealing with the application, and not by a separate suit.

Rule 102 bars placing such obstruction by pendente lite transferees.

Usha Sinha v. Dina Ram is the Classic decision. Held – If pendente lite transferee could resist, Every time he will transfer the property

Usha Sinha V. Dina Ram and others (2008) 7 SCC 144, is the classic decision on this subject. It is pointed out that if pendente lite transferee could resist or obstruct execution of a decree, every time the decree holder seeks execution, the judgment debtor will transfer the property. It is laid down in this decision-

• Rule 102 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.
• 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.
• Rule 102, therefore, clarifies that there should not be resistance or obstruction by a transferee pendente lite.
• Since the appellant is a purchaser pendente lite and as she has no right to offer resistance or cause obstruction and as her rights have not been crystallized in a decree, Rule 102 of Order 21 of the Code comes into operation. Hence, she cannot resist execution during the pendency of the suit instituted by her.

Scope of adjudication is confined to whether transfer was pendent lite

It is pointed out in Usha Sinha V. Dina Ram that it was held in Silverline Forum Pvt. Ltd. v. Rajiv Trust, (1998) 3 SCC 723, that where there is a the transfer 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.

Whether ‘Pendente Lite Transfer’ – if it was After Dismissal of Suit, for Default

In Jini Dhanraj Gir v. Shibu Mathew (SC, 16 May, 2023), one of the questions arisen was whether there was ‘pendente lite transfer’, if the transfer was made after dismissal (post-dismissal) of the suit for default (and before its restoration). It was argued that during the time when the transfer was effected there was no pending lis. The Executing Court posted the EP to determine the question as to whether the transfer would attract Rule 102.

The Apex Court observed that the claim raised by the Respondents, ‘cannot be thrown out at the threshold since it is well within their rights to contest the application under Order XXI Rule 97, CPC‘. The Apex Court directed that it was most appropriate for the Executing Court to determine the question as to whether the transfer would attract Rule 102.

Rules 97 to 102, Order XXI CPC

“Order XXI – Execution of decrees and orders

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 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 sub­rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

98. Orders after adjudication –

• .(1) Upon the determination of questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub­rule (2), ­
• .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.
• .(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment­ debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment­ debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.

99. Dispossession by decree­ holder or purchaser –

• .(1) Where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
• .(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

100. Order to be passed upon application complaining of dispossession –

• Upon the determination of 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.

101. Question to be determined –

• All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

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.
• Explanation – In this rule, “transfer” includes a transfer by operation of law.