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Judgment
S.G. Chapalgaonkar, J
The appellants (original objection petitioners) impugns judgment and decree dated 16.06.2016 passed by learned District Judge-1, Kandhar in Regular Civil Appeal No.11 of 2014 thereby upholding order dated 07.02.2014 passed by learned Civil Judge, Junior Division, Loha below Exhibit-32 in Regular Darkhast No.20 of 2002 by which the application/objection filed the appellants under order XXI Rule 97 of the Civil Procedure Code to execution of decree has been rejected.
Brief facts giving rise to the present second appeal can be stated as under.
The portion of 46R land from Block No.387 situated at Village Ramtirth, Taluka Loha, District Nanded is subject matter of litigation. One Shankarrao Narayan Kanakdande instituted Regular Civil Suit No.246 of 1974 before learned Civil Judge, Junior Division, Gangakhed seeking decree for partition and separate possession against Madhukar @ Yashwantrao Kanakdande and others. Amongst other properties, land Block No.387 was also included as suit property. It was claimed that suit properties are ancestral properties, therefore, plaintiff is entitled for partition and separate possession of his share. Upon adjudication, Regular Civil Suit No.246 of 1974 was decreed vide judgment and order dated 15.01.1980. However, the property Block No.387 was excluded from decree on finding that Madhukar @ Yashwantrao Kanakdande is the exclusive owner of the property or it is his self-acquired property. Immediately after 10 days of the aforesaid decree, Madhukar @ Yashwant Kanakdande executed sale deed dated 25.01.1980 in favour of Balwant and Mahalsakant. In turn, vide sale deed dated 09.04.1987, it was purchased by Sadashiv Pole. Lastly, appellant no.1 and Sadashiv transferred land to Uttam Devla Rathod. Thereafter, appellant no.1 again purchased 80R land from Uttam Rathod. Appellant no.1 then transferred land in the name of his three sons i.e. appellant nos.2 to 4.
Meanwhile, Shankarrao Kanakdande filed Regular Civil Appeal No.25 of 1980 against judgment and decree dated 15.01.1980 passed in Regular Civil Suit No.246 of 1974. The said appeal came to be allowed holding that suit properties including Block No.387 are ancestral properties and plaintiff along with other coparceners is entitled for partition and separate possession. The decree as passed by the Appellate Court has been put to execution in Regular Darkhast No.20 of 2002 by legal heirs of original plaintiff i.e. Shankarrao Kanakdande. The appellants, who acquired possession in pursuance to aforesaid sale deed filed objection petition below Exhibit-32 under Order XXI Rule 97 of Civil Procedure Code. They resisted decree on the ground that the decree is passed behind their back. They were not aware about filing of appeal. Even they were not added as party before the Appellate Court in Regular Civil Appeal No.25 of 1980. According to them, the Trial Court had rendered specific finding in Regular Civil Suit No.246 of 1974 that property Block No.387 is self-acquired property of Madhukar @ Yashwantrao Kanakdande. However in appeal, said Madhukar conceded to treat Block No.387 as ancestral property. As such, decree passed in appeal is collusive and would not be executable against them.
The Trial Court after considering rival submissions rejected objection vide order dated 07.02.2014, mainly on the ground that the appellants being pendente lite purchasers not entitled to invoke the provisions of Order XXI Rule 97, 98 or 101 of Civil Procedure Code. Further Section 52 of Transfer of Property Act would operate against them. Aggrieved objection petitioners/present appellants filed Regular Civil Appeal No.11 of 2014 before District Judge-1, Kandhar, which came to be rejected vide impugned judgment and order dated 16.06.2016. The present second appeal is filed assailing aforesaid order.
The present second appeal was posted for admission on 21.01.2019 and after hearing parties, this Court framed the following substantial questions of law and admitted the appeal :
(I) Whether in absence of framing necessary issues and point for consideration by the learned Civil Judge and learned District Judge, trial is vitiated and whether the judgment of both the courts is sustainable?
(III) Whether the courts below have considered that the judgment and decree in Regular Civil Appeal No. 25 of 1980 of the learned District Judge is behind and back of present appellants and with collusion by the respondents in order to defeat the right of the present appellants?
(V) Whether the courts below have considered that the present appellants are bona fide purchaser for value without notice and that they had no knowledge about the filing of Regular Civil Appeal No. 25 of 1980 by the respondents till filing of the execution proceeding?
(VI) Whether both the courts below have considered that alternatively the sale deed executed in favour of appellants is binding in respect of the share of the concerned respondent Yashwantrao Kanakdande?
On 29.03.2022, considering the request of parties, the second appeal was directed to be placed for final hearing. Again vide orders dated 25.04.2024, 24.01.2025 and 04.03.2025, the appeal was directed to be placed on the board for final hearing, as litigation is initiated in the year 1974 and decree under execution is passed in the year 1999, which is awaiting its execution. Accordingly, learned advocates appearing for respective parties advanced their submissions.
Mr. B.R. Kedar, learned advocate appearing for the appellants would submit that Regular Civil Suit No.246 of 1974 was decreed vide judgment and order dated 15.01.1980. However, Block No.387, which is subject matter of present litigation was held to be self-acquired property of Madhukar @ Yashwantrao Kanakdande, who transferred the same under registered sale deed dated 25.01.1980. By inviting attention of this Court to the judgment of Appellate Court in Regular Civil Appeal No.25 of 1980, Mr. Kedar endeavours to point out finding recorded by Trial Court that property Block No.387 is a self-acquired property has been reversed by Appellate Court on consent given by respondents and not on merit. He would therefore urge that such collusive finding and consequential decree would not bind the appellants, who acquired title on the basis of sale deed executed immediately after decision rendered in suit. In support of his contention, Mr. Kedar relies upon observations of this Court in case of Nathu Dhoju Gholap Vs. Ramchand Balchand and Anr AIR 1946 Bombay 462 to contend that although rule of lis pendens applies to consent decree or compromise decree, it can be very well examined, if consent or compromise is honest and not fraudulent or collusive. If final decision is brought about by fraud or collusion, it cannot be said that lis pendens was fairly decided and that decision cannot affect the rights of the transferee pendente lite. Mr. Kedar would alternatively submit that, the appellants could have treated as bona fide purchasers and their right to seek equitable partition could have been protected by Executing Court in peculiar facts of this Court.
Per contra, Mr. Narwadkar, learned advocate appearing for the contesting respondents would urge that the appellants being pendente lite purchasers, they are not entitled to maintain objection under Order XXI Rule 97, 98 or 101 of Civil Procedure Code. He would point out that both Courts have elaborately dealt with the contentions of objectioners/appellants and recorded clear finding that the decree passed by the Appellate Court in Regular Civil Appeal No.25 of 1980 is not collusive or obtained with intention to defraud the appellants. He would therefore urge to dismiss the second appeal, filed against concurrent findings of facts.
There is no dispute as to fact that the suit properties i.e. Block No.387 (Survey No.93) was subject matter of the partition suit i.e. Regular Civil Suit No.246 of 1974 instituted by Shankarrao Kanakdande against Madhukar @ Yashwantrao Kanakdande and others. On 15.01.1980, the decree was passed in the suit; however, the land Block No.387 was excluded from decree of partition on observation that it is a self-acquired property of Madhukar @ Yashwantrao Kanakdande. Immediately, within 10 days of decree i.e. on 25.01.1980, Madhukar @ Yashwant Kanakdande transferred Block No.387 in favour of Balwant and Mahalsakant. Later on, present appellants/objectioners acquired the title under registered sale deed from those pendente lite purchasers. Evidently, the sale deed executed by Madhukar @ Yashwantrao Kanakdande was within ten days period after the decree that is even before expiry of limitation for filing appeal. Later on, Shankarrao Kanakdande preferred Regular Civil Appeal No.25 of 1980 before learned District Judge at Parbhani, which came to be allowed holding that property Block No.387 (Survey No.93, which is subject matter of present proceeding) was an ancestral property and therefore, made part of the decree of partition and separate possession. In that view of the matter, appellants cannot deny that they are claiming title through pendente lite purchaser.
Mr. Kedar, learned advocate appearing for appellants seeks to make exception from application of rigors of Section 52 of Transfer of Property Act alleging that the decree passed by the Appellate Court in Regular Civil Appeal No.25 of 1980 is behind back of present appellants and same is collusive one. It is true that the Appellate Court recorded consent of respondents to hold that land Block No.387 (Survey No.93) is an ancestral property. However, there is nothing to hold that consent was fraudulent or intended to deprive or defraud the purchasers. Only because the respondents accepted the status of property as ancestral, that does not mean that it was fraudulent consent. The appellants could not bring any material to substantiate their contention. The Executing Court as well as the Appellate Court while dealing with the objection of appellants elaborately recorded the finding in this regard, which is based on appreciation of evidence. This Court did not find any reason to disturb such findings.
Once the appellants are held to be pendente lite purchasers, the rigors of Section 52 of Transfer of Property Act will have to be given full effect. Rule 102 of Order XXI of Civil Procedure 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. It would be unfair and inequitable to protect the transferee pendente lite. Any such protection may frustrate the decree holder from realizing fruits of his decree. The resistance from such transferees is therefore nullified in light of operation of Section 52 of Transfer of Property Act read with Rule 102 of Order XXI of Civil Procedure Code. The Hon’ble Supreme Court of India in case of Usha Sinha Vs. Dina Ram and Ors 2008 (7) SCC 144 observed in paragraph no.16 that while interpreting the provisions of the statute, the court must give due weight to the intention of the statute in order to give effect to the provisions. It is further observed that if we look at Section 52 of the Transfer of Property Act and Rule 102 of Order 21 C.P.C., it is very clear that the intention of the Parliament with which the statute had been enacted is that the rights of one of the parties to the proceeding pending before the court cannot be prejudiced or taken away or adversely affected by the action of the other party to the same proceeding. In the absence of such restriction one party to the proceeding, just to prejudice the other party, may dispose of the properties which is the subject matter of the litigation or put any third party in possession and keep away from the Court. By such actions of the party to the litigation the other party will be put to more hardship and only to avoid such prejudicial acts by a party to the litigation these provisions are in existence. It is further observed that the Courts are duty bound to give effect to the provisions of the statute.
In case of Silverline Forum Pvt. Ltd. Vs. Rajiv Trust (1998) 3 SCC 723, it is observed that where the resistance is caused or obstruction is offered by a transferee 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. It is further observed that for invoking Rule 102, it is enough for the decree holder to show that person resisting the possession or offering obstruction is claiming his title to the property after 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 reliance either on Rule 98 or Rule 100 of Order XXI.
In light of the aforesaid exposition of law, it is evident that in absence of independent right to continue in possession, but on the basis of pendente lite transfer made by judgment debtor, the appeals/objections to execution of decree cannot be entertained under provisions of Order XXI Rule 97, 98, 101 of Civil Procedure Code.
The last question that requires consideration is, as to whether the appellants would have right to claim equitable partition. The issue is no more res integra. The Hon’ble Supreme Court of India in case of Khemchand Shankar Choudhari and Another Vs. Vishnu Hari Patil and Others (1983) 1 SCC 18, observed in paragraph no.6 as under :
“In the case of transferees pendente lite also, if there is no dispute, the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject-matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of Section 54 of the Code of Civil Procedure advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the civil court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition taking into consideration the interests of all concerned including those on whom any interest in the subject-matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out 'in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares'.”
In view of the aforesaid exposition of law, it would be open for the appellants to raise appropriate claim before the Collector in execution of decree transmitted under Section 54 of Civil Procedure Code being representative of interest of his vendor and claim the right under judgment debtor. As he would be representing judgment debtor, the decree can be enforced against him. However, he can definitely seek equitable partition, so also the allotment of property in his possession to the share of his vendor/judgment debtor. If it is in conformity of the rule regarding partition and allotment of the properties, the Collector can positively consider such request without prejudice to the right of decree holder.
Although, it is submitted that the Executing Court or the Appellate Court failed to frame appropriate issues or points for consideration, it can be observed that all the relevant aspects of the matter are argued before the Courts and elaborate findings are recorded. Nothing is brought to the notice of this Court to show that the appellants suffered prejudice owing to non-framing of any particular issue or point for consideration. In absence of such prejudice, the general objection in this regard would not assist the appellants to successfully challenge the impugned judgment and decree. In result, second appeal sans merit. Hence, dismissed.
At this stage, Mr. Kedar, learned advocate appearing for appellants submits that appellants may approach Hon’ble Supreme Court of India by filing Special Leave Petition against this judgment and order. In that view of matter, he request to continue interim protection which was in force during pendency of second appeal. In view of order dated 21.01.2019, interim relief was granted in favour of appellants, therefore, same shall remain in force for a period of ten weeks from today.