Tahir vs Isani v. Madan Waman Chodankar

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO………………….OF 2025 (ARISING OUT OF SLP(C) NO.15167 OF 2022)

TAHIR V. ISANI ...PETITIONER

VS.

MADAN WAMAN CHODANKAR, (SINCE DECEASED) NOW THROUGH HIS LEGAL REPRESENTATIVES & ORS. …RESPONDENT(S)

ORDER

1. Leave granted.

2. This appeal assails the correctness of judgment

and order dated 25th July, 2022, passed by the

High Court of Bombay at Goa1 in Writ Petition

No.86 of 2022, whereby the learned Single Judge

allowed the writ petition, and after setting aside Signature Not Verified Digitally signed by NEETU KHAJURIA Date: 2025.08.26 17:38:50 IST Reason: 1 Hereinafter, referred to as ‘High Court’

C.A. NO…..2025@SLP(C) NO.15167/2022 1 the order dated 17th September, 2021, passed by

the Executing Court, allowed the application

Ext.D-100 dated 22nd October, 2019, and thereby

discontinued the enquiry under Order XXI Rules

97 and 101 of the Code of Civil Procedure, 19082.

The above impugned order was passed placing

reliance upon the provisions contained in Order

XXI Rule 102 of the CPC.

3. Relevant facts necessary for adjudication of the

present appeal are as under: -

3.1 Mrs. Maria Eduardo Apolina Gonsalves Misquita

was the owner of plot of land measuring 477

square meters with a two-floor building ground +

first standing thereon registered at No.1624,

Book No.B(5)(new), page-156 (reverse) in the

Land Registration Office, Panaji bearing Matriz

No.958.

2

In short, “CPC”

C.A. NO…..2025@SLP(C) NO.15167/2022 2 3.2 A part of the aforesaid property on the ground

floor, measuring 123 square meters with plinth

area and approximately 89.78 square meters

area of building, was leased out on rent to Madan

Waman Chodankar (respondent no.1), vide deed

dated 22nd February, 1977.

3.3 Later on, respondent no.1 entered into a

partnership on 13th March, 1977 with

Dyaneshwar Keshav Malik and others (‘Maliks’)

for setting up a hardware business and other

allied products. The business of the said firm was

to be carried out from a portion of the aforesaid

leased premises. However, the tenancy as per the

partnership was to continue with respondent

no.1.

3.4 The original owner, Mrs. Misquita, vide

registered sale deed dated 16th January, 1988,

sold the entire property to M/s. Rizvi Estate and

C.A. NO…..2025@SLP(C) NO.15167/2022 3 Hotels Pvt. Ltd. Thereafter, an agreement was

executed between the purchaser, M/s. Rizvi

Estate and Hotels Pvt. Ltd and the Maliks (sub-

lessee) for surrendering the possession in order

to enable the purchaser to demolish the building,

construct a new multi-storied building and

thereafter provide space to the sub-lessee upon

construction of the new building and in the

meantime provide alternate space to the sub-

lessee. In the said document of 16th April, 1988

respondent no.1 was a confirming party.

3.5 Respondent no.1 filed a Regular Civil Suit

No.112/88/C for injunction against M/s. Rizvi

Estate and Hotels Pvt. Ltd. as they sought to

demolish portion of the building apparently in

the light of the agreement dated 16th April, 1988.

In 1989, M/s. Rizvi Estate and Hotels Pvt. Ltd.

preferred an application for eviction of

C.A. NO…..2025@SLP(C) NO.15167/2022 4 respondent no.1 before the Court of Rent

Controller being Rent Case No.17 of 1989

alleging that there has been sub-letting by

respondent no.1 to Maliks, which was contrary

to the lease deed dated 22nd February, 1977.

3.6 In 1996, respondent no.1 filed a Special Civil Suit

No.97/1996/B against Maliks for dissolution of

partnership, recovery of profit and ejectment.

The written statement filed by Maliks in the said

suit clearly stated that all parties had

surrendered their rights in favour of M/s. Rizvi

Estate and Hotels Pvt. Ltd. on 11th April, 1988.

3.7 Meanwhile, the Court of Civil Judge, Jr. Division,

vide judgment dated 22nd July, 1999, decreed the

injunction suit filed by respondent no.1 and

restrained M/s. Rizvi Estate and Hotels Pvt. Ltd.

from demolishing the building. The decree and

judgment of the Civil Judge was carried in appeal

C.A. NO…..2025@SLP(C) NO.15167/2022 5 by way of Regular Civil Appeal No.91/99, which

was dismissed, vide order dated 24th December,

2001.

3.8 M/s. Rizvi Estate and Hotels Pvt. Ltd., vide

registered sale deed dated 24th April, 2007, sold

the property in question to the appellant, Tahir

V. Isani. Thereafter, the Maliks executed a

surrender deed on 5th October, 2007 in favour of

the appellant after accepting Rs.10 lakhs.

3.9 The Trial Court hearing, the suit for dissolution

of the partnership and eviction of Maliks decreed

the Special Civil Suit No.97/1996/B in favour of

the respondent no.1 (being decree-holder now),

vide an ex parte judgment dated 24th April, 2008,

as the Maliks did not contest the suit any further.

3.10 Respondent no.1 filed an application for

execution of the decree dated 24th April, 2008,

which was registered as Execution Application

C.A. NO…..2025@SLP(C) NO.15167/2022 6 No.22 of 2008 (B). In February 2009, the

appellant moved an application under Order XXI

Rules 97 and 101 of CPC objecting to the

execution of the decree. The said application was

opposed by the respondent no.1.

3.11 The appellant applied for framing of issues on

18th August, 2011. The Executing Court while

framing issues, vide order dated 5th September,

2013, dealt with the issue relating to Section 52

of the Transfer of Property Act, 1882 on the

ground that that the sale deed dated 24th April,

2007, was prior to the decree and further noted

that the tenancy rights had been surrendered by

a written agreement dated 11th April, 1988.

3.12 The evidence was being recorded in the

proceedings under Order XXI Rules 97 and 101

of CPC, in which the statement of the appellant

was also recorded sometime around 2019. It was

C.A. NO…..2025@SLP(C) NO.15167/2022 7 at this stage, i.e. after ten years, that the legal

heirs of respondent no.1, who were brought on

record on account of his death, moved an

application to discontinue the enquiry on the

basis of doctrine of lis pendens. The Executing

Court dismissed the application of the

respondent, vide order dated 17th September,

2021. Aggrieved, the decree-holder preferred Writ

Petition No.86 of 2022, which has since been

allowed by the impugned order dated 25th July,

2022. Hence, the appellant is before us.

4. This Court while issuing notice on 2nd September,

2022 had passed an order of status quo of

possession with regard to the suit property.

5. We have heard learned counsel for the parties

and perused the material on record. Before

proceeding further, it would be worthwhile to

briefly refer to the findings recorded by the

C.A. NO…..2025@SLP(C) NO.15167/2022 8 Executing Court while dismissing the application

dated 20th December, 2019, and also the findings

recorded by the High Court in the impugned

order dated 25th July, 2022.

6. The Executing Court recorded the following

reasons: -

i. The suit in question i.e. 97/1996/B was only

for dissolution of partnership and recovery of

profits and ejectment. It did not deal with the

title to the property in question.

ii. There was no issue relating to ownership of the

said property as admittedly respondent no.1

had claimed to be a tenant under a lease deed

dated 22nd February, 1977 and subsequently,

having sub-let the same had formed a

partnership with Maliks.

iii. The appellant had purchased the property not

from any party to the said suit, i.e. the plaintiff

C.A. NO…..2025@SLP(C) NO.15167/2022 9 or the defendant, but from the owner M/s.

Rizvi Estate and Hotels Pvt. Ltd., who was not

a party to the proceedings in which decree was

granted in favour of respondent no. 1.

iv. The appellant being the owner of the property

in question had a right to raise objection under

Order XXI Rules 97 and 101 of CPC and the

Executing Court was bound to enquire into

and thus, adjudicate upon the said objection.

v. It relied upon a judgment of this Court in the

case of Dev Raj Dogra and others v. Gyan

Chand Jain and others3 and concluded that

the doctrine of lis pendens was not applicable

to the present case and, therefore, the enquiry

should be continued and brought to its logical

conclusion.

7. The High Court was of the view that since the

3 (1981) 2 SCC 675

C.A. NO…..2025@SLP(C) NO.15167/2022 10 appellant was a transferee pendente lite of

judgment debtor, therefore, in view of provisions

of Rule 102 of Order XXI of CPC, the application

filed by the appellant under Rules 97 and 101 of

Order XXI CPC was not maintainable. It

accordingly allowed the writ petition filed by

respondent no. 1, and set aside the order of the

Executing Court dated 17th September, 2021,

thereby allowing the application, Ext.D-100 and

closing the enquiry.

8. In order to appreciate the controversy at hand,

we deem it fit to reproduce hereinbelow the

relevant provisions of Order XXI of CPC as

applicable to the present case: -

“Resistance of delivery of possession to decree-holder or purchaser

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 in obtaining possession of the property, he may

C.A. NO…..2025@SLP(C) NO.15167/2022 11 make an application to the Court complaining of such resistance or obstruction.

(2) Where any application is made under sub- rule (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 the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (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

C.A. NO…..2025@SLP(C) NO.15167/2022 12 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 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.

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 lite pendente.—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 judgement- debtor has transferred the property after the institution of the suit in which the decree was

C.A. NO…..2025@SLP(C) NO.15167/2022 13 passed or to the dispossession of any such person.

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

9. The whole scheme of Rule 102 of Order XXI

intends to preserve the idea of achieving finality

of the judicial decisions. The provision imbibes

the principle of “interest reipublicae ut sit finis

litium” i.e., it is in the interest of the State that

there should be an end to litigation. In a suit

pending between a plaintiff and a defendant as to

the right to a particular estate, the decision of the

court in that case shall be binding not only on

the litigating parties, but also on those who

derive title under them by alienations (transfer)

made while the suit was pending, whether such

alienees, i.e. transferees, had or had not notice of

the pending proceedings. In this regard, we are

benefitted by the decision of this Court in Usha

C.A. NO…..2025@SLP(C) NO.15167/2022 14 Sinha v. Dina Ram and others 4 , where this

Court had the occasion to deal with the scheme

of Rule 102 of Order XXI, and held that: -

“17. Rule 102 clarifies that Rules 98 and 100 of Order 21 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 recognises the doctrine of lis pendens recognised by Section 52 of the Transfer of Property Act, 1882. Rule 102 of Order 21 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 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 transfer the property and the new transferee will offer resistance or cause obstruction. To avoid such a situation,

4 (2008) 7 SCC 144

C.A. NO…..2025@SLP(C) NO.15167/2022 15 the Rule has been enacted.” (emphasis supplied)

Therefore, Rule 102 of Order XXI intends to

protect the interests of the decree-holder against

the attempts of unscrupulous judgment-debtors

and their subsequent transferees who indulge in

activities and leave no stone unturned to deprive

the decree-holders from reaping the benefits of

the decree granted in their favour. The Rule being

equitable in nature, therefore, estops further

creation of rights as it explicitly states that

nothing in Rules 98 and 100 shall apply to the

resistance or obstruction being made by the

transferee pendente lite of judgment-debtor.

10. Recently, this Court in the case of Jini

Dhanrajgir and another v. Shibu Mathew and

another5 noted the plight of the decree-holders

5 (2023) 20 SCC 76

C.A. NO…..2025@SLP(C) NO.15167/2022 16 in our country. The Court quoted a Privy Council

decision in 1872 and concluded that the

observations made therein still hold true, where

Privy Council had stated that the difficulties of

litigants in India indeed begin when they have

obtained a decree. For the ready reference, the

relevant extract is quoted hereinbelow: -

“. . . More than a century and a half back, the Privy Council (speaking through the Right Hon. Sir James Colville, J.) in Raj Durbhunga v. Coomar Ramaput Sing [1872 SCC OnLine PC 16] lamented that the difficulties of litigants in India indeed begin when they have obtained a decree. A reference to the above observation is also found in the decision of the Oudh Judicial Commissioner's Court in Kuer Jang Bahadur v. Bank of Upper India Ltd. [Kuer Jang Bahadur v. Bank of Upper India Ltd., 1925 SCC OnLine Oudh JC 217] It was ruled there that the courts had to be careful to ensure that the process of the court and the laws of procedure were not abused by judgment-debtors in such a way as to make the courts of law instrumental in defrauding creditors, who had obtained decrees in accordance with their rights.

2. Notwithstanding the enormous lapse of time, we are left awestruck at the observation [Raj Durbhunga v. Coomar Ramaput Sing, 1872 SCC OnLine PC 16] of the Privy Council which seems to have proved prophetic. The

C.A. NO…..2025@SLP(C) NO.15167/2022 17 observation still holds true in present times and this case is no different from cases of decree-holders’ woes commencing while they are in pursuit of enforcing valid and binding decrees passed by civil courts of competent jurisdiction. The situation is indeed disquieting, viewed from the perspective of the decree-holders, but the law, as it stands, has to be given effect whether the court likes the result or not. . .” (emphasis supplied)

11. While it is important to protect the interests of

decree-holders, who hold an enforceable decree

in their favour, it cannot be gainsaid that such

interests cannot be blanketly protected. Rule 102

of Order XXI expressly lays down the ingredients

as to when it can be applied. For a case to fall

under Rule 102, it is condition precedent that

there exists a decree for the possession of

immovable property. Secondly, there must be a

resistance or an obstruction in the execution of

the said decree. Thirdly, such obstruction or

resistance must be made by a person to whom

C.A. NO…..2025@SLP(C) NO.15167/2022 18 the judgment-debtor has transferred the

property. Fourthly, such transfer must have

occurred after the institution of the original suit,

i.e. the one in which the decree was passed. If the

aforesaid ingredients are made out, Rule 102

prohibits the protection of Rules 98 and 101 to

such errant transferee of judgment-debtor.

12. In Usha Sinha (supra), the Court also had the

occasion to deal with the mischief of such

transferees who engage in conveyance pendente

lite. The Court quoted with approval the locus

classicus from English law on the doctrine of lis

pendens Bellamy v. Sabine, [(1857) 1 De G & J

566], wherein the English Court recognised that

the intent behind such provision is to stop the

vicious cycle of introducing subsequent new

buyers (alienees) while a suit is already pending.

If such principle is not applied, the Court held

C.A. NO…..2025@SLP(C) NO.15167/2022 19 that there would be no certainty that the

litigation would ever come to an end. This Court

noted with disapproval the mischief being

created by such transferees and their vendors,

being the judgment-debtor, who transfer the

immovable property at any time after the

institution of the suit and held as follows: -

“18. Before one and a half century, in Bellamy v. Sabine [(1857) 1 De G & J 566 :

44 ER 842] , Lord Cranworth, L.C. proclaimed that where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind require that the decision of the court in the suit shall be binding not only on the litigating parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end. ...

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

C.A. NO…..2025@SLP(C) NO.15167/2022 20 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 Rules 98 or 100 of Order 21.

...

26. 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 cannot place reliance either on Rule 98 or Rule 100 of Order 21.” (emphasis supplied)

Therefore, it is absolutely clear, that the

transferee of a judgment-debtor who traces his

title to the immovable property, that is the

subject matter of a pending suit, is not entitled

to seek the remedy available under Rules 97 to

102 of Order XXI. At the cost of repetition, we

state that the whole scheme of Rule 102 of Order

XXI read with Section 52, Transfer of Property

Act, 1882 is to protect the interest of a decree-

C.A. NO…..2025@SLP(C) NO.15167/2022 21 holder who has successfully attained a decree of

possession of an immovable property.

13. However, Rule 102 of Order XXI applies only to a

person to whom the judgment-debtor has

transferred the immovable property which was

subject matter of that suit pendente lite. If the

person who is resisting or obstructing the

execution of the decree for possession of such

property, is not the transferee of judgment-

debtor, i.e. he does not trace his title from

judgment-debtor, bar of Rule 102 does not apply

to him. That is to say that if the person who is

resisting or obstructing the decree for possession

has received the property from person other than

the judgment-debtor, such person is competent

to gain the benefit of Rules 97 to 101 of Order

XXI. In fact, he is entitled to such benefit even if

he had been transferred the immovable property

C.A. NO…..2025@SLP(C) NO.15167/2022 22 pendente lite, i.e. during the pendency of the suit,

in which the decree was passed.

14. Coming now to the facts of the present case, we

are of a considered view that the Executing Court

was right in rejecting the application, Ext. D-100,

not only for the reasons given by the Executing

Court in the order dated 17th September, 2021,

but also for the following reasons: -

a) The appellant in his application of February

2009 filed under Order XXI Rule 97 and 101

of CPC had mentioned all the facts in detail

including the details about the sale deed

dated 24th April, 2007, as also the surrender

deed dated 5th October, 2007. The filing of the

application by the respondent, Ext.D-100 in

2019 after ten years itself was belated and

mala fide. The said application ought to have

been filed in the very beginning. The plea

C.A. NO…..2025@SLP(C) NO.15167/2022 23 taken that in the cross-examination, the

admission of the appellant about the

surrender deed dated 5th October, 2007, gave

cause to the respondent to file the application

for closing the enquiry was completely

untenable. The fact regarding the surrender

deed dated 5th October, 2007, was mentioned

in the application under Order XXI Rules 97

and 101 of CPC filed in February 2009.

b) The Executing Court upon an application filed

by the appellant in 2011 had framed the

issues in 2013 and had directed for

conducting the enquiry. At that stage also the

respondent did not object to the same and

participated in the enquiry. It took six years

for the respondent to move the application

and that too on a totally lame and untenable

C.A. NO…..2025@SLP(C) NO.15167/2022 24 ground. The High Court committed serious

error in allowing the writ petition and closing

the enquiry.

c) The appellant being the owner of the property

in question had a right to object and ensure

that there was no collusive decree which was

sought to be executed.

15. The appellant in the present case does not trace

his title from the judgment-debtor, i.e. the Maliks

and therefore, he is not a transferee pendente lite

of the judgment-debtor. The appellant is a bona

fide buyer who had bought the suit property from

M/s Rizvi Estate and Hotels Pvt. Ltd., vide

registered sale deed dated 24th April, 2007, who

traced their title from the original owner, Mrs.

Misquita, vide registered sale deed dated 16th

January, 1988. The transferor, M/s Rizvi Estate

C.A. NO…..2025@SLP(C) NO.15167/2022 25 and Hotels Pvt. Ltd., of the appellant was not a

party to the suit bearing Special Civil Suit No.

97/1996/B, the decree of which has been put to

execution. They were third party, having received

the ownership rights from the original owner in

1988. Thus, even if the appellant did buy the

subject-property in 2007, during the pendency of

the suit between the Maliks and the present

respondents, the bar of Rule 102 of Order XXI

does not affect or prohibit the appellant from

raising his objections before the Executing Court

under Rules 97 and 101 and subsequently

receive its adjudication under Rules 98 and 100.

16. In view of the above discussion, the appeal

deserves to be allowed. The impugned order

dated 25th July, 2022, passed by the High Court

is set aside. The Executing Court is directed to

proceed with the enquiry, conclude the same and

C.A. NO…..2025@SLP(C) NO.15167/2022 26 bring it to its logical conclusion in accordance

with law.

17. It is made clear that the Executing Court will

decide the application under Order XXI Rules 97

and 101 of CPC on its own merits and

uninfluenced by any observations made by us in

this order.

18. Pending application, if any, stands disposed of.

……………………………J. [VIKRAM NATH]

……………………………J. [SANDEEP MEHTA]

NEW DELHI;

MAY 06, 2025

C.A. NO…..2025@SLP(C) NO.15167/2022 27