2008 (3) TMI 753 - SC - Indian Laws

Summary

Issues Involved:
1. Legality of the ex-parte decree in Title Suit No. 140 of 1999.
2. Applicability of Rule 102 of Order XXI of the Code of Civil Procedure, 1908.
3. Doctrine of lis pendens and its impact on the sale during the pendency of the suit.
4. Right of the appellant to seek protection under Rule 29 of Order XXI of the Code.

Summary:

1. Legality of the ex-parte decree in Title Suit No. 140 of 1999:
The respondent filed Title Suit No. 140 of 1999 against several defendants. During the pendency of the suit, defendants No. 4 and 5 sold their share to the appellant. An ex-parte decree was passed on May 24, 2001, declaring the plaintiff's right and title over the suit land. The appellant filed Title Suit No. 226 of 2001, asserting ownership and challenging the decree as illegal, inexecutable, and obtained by fraud.

2. Applicability of Rule 102 of Order XXI of the Code of Civil Procedure, 1908:
The appellant sought an injunction to stay the execution of the decree. The Executing Court initially granted the stay, but the High Court set aside this order, invoking Rule 102 of Order XXI, which states that nothing in Rules 98 and 100 shall apply to resistance or obstruction by a transferee pendente lite. The Supreme Court upheld this view, emphasizing that Rule 102 is based on justice, equity, and good conscience, and aims to prevent unfair protection to transferees pendente lite.

3. Doctrine of lis pendens and its impact on the sale during the pendency of the suit:
The Court reiterated that the doctrine of lis pendens, recognized by Section 52 of the Transfer of Property Act, 1882, applies to the sale made during the pendency of the suit. The doctrine prohibits dealing with the property under litigation, and the transferee is bound by the decree. The Court cited precedents, including Bellamy v. Sabine and Silverline Forum Pvt. Ltd. v. Rajiv Trust, affirming that a transferee pendente lite has no right to resist or obstruct the execution of the decree.

4. Right of the appellant to seek protection under Rule 29 of Order XXI of the Code:
The appellant argued for protection under Rule 29 of Order XXI, which deals with cases where a suit is instituted by the judgment-debtor against the decree-holder. The Court clarified that Rule 29 has no relevance to cases of lis pendens. The appellant, being a transferee pendente lite, cannot be considered a 'stranger' to the suit and must be presumed to be aware of the litigation. The Court concluded that the appellant could not resist execution during the pendency of her suit and must seek restitution if she succeeds in her suit.

Conclusion:
The Supreme Court dismissed the appeal, upholding the High Court's decision that the appellant, as a transferee pendente lite, could not resist the execution of the decree. The Court emphasized the principles of lis pendens and the applicability of Rule 102 of Order XXI, ensuring that the decree-holder could realize the fruits of the decree. No order as to costs was made.