Gujarat High Court
K. Kakubhai C/O Bhartiben M Upadhyaya vs Chintan Chandrakant Maniar on 6 August, 2025
NEUTRAL CITATION
C/SCA/8132/2013 JUDGMENT DATED: 06/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8132 of 2013
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2014
In R/SPECIAL CIVIL APPLICATION NO. 8132 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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K. KAKUBHAI C/O BHARTIBEN M UPADHYAYA
Versus
CHINTAN CHANDRAKANT MANIAR & ORS.
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Appearance:
MR VISHAL T. PATEL(6518) for the Petitioner(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 2
MS MEGHA JANI(1028) for the Respondent(s) No. 1
RULE UNSERVED for the Respondent(s) No. 2.1,2.2,2.3,2.4,2.5,2.6,2.7
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 06/08/2025
ORAL JUDGMENT
1. The present application is filed under Article 227 of the
Constitution of India seeking the following relief:-
“a) The Honourable Court may be pleased to quash and set-aside
the Order passed below Exh. 47 dated 04-04-2013, Annexure-H to
this Petition by the Learned Judge, Court No.17, City Civil Court,
Ahmedabad in Darkhast Proceedings No.767 of 2001 in the interest
of justice.
b) Pending admission, hearing and final disposal of this Special
Civil Application, this Hon’ble Court may be pleased to stay
execution, implementation and operation of the impugned Order
passed below Exh. 47 dated 04-04-2013, Annexure-H to this
Petition by the Learned Judge, Court No. 17, City Civil Court,
Ahmedabad in Darkhast Proceedings No.767 of 2001 in the interest
of justice.
C) Cost of this petition be provided for;
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d) Any other and further relief which the Honourable Court may
deem just, fit and proper may please be granted;”
2. The short facts which require to be discussed to resolve
the controversy germane to the application are that the
petitioner herein is a decree-holder who has filed Execution
Application No. 767 of 2001.
2.1. Pending such execution, the original judgment-debtor
executed a registered sale deed in favour of respondent No. 1,
who filed the impugned application to be joined in the
execution, which was allowed by the Trial Court vide its
impugned order.
2.2. The decree-holder, being aggrieved and dissatisfied by
the impugned order, has preferred the present application.
3. SUBMISSIONS OF THE PETITIONER DECREE-HOLDER
3.1. Learned Advocate Mr. Vishal T. Patel appearing for the
petitioner would submit that the Trial Court has committed a
serious error of law by allowing the impugned application filed
at the instance of respondent No. 1 – a third party, who could
not have been joined in the execution.
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3.2. It is submitted that when the judgment-debtor,
knowing fully well that there is a consent decree whereby he
was required to execute the sale deed in favour of the
petitioner decree-holder, has executed a registered sale deed in
favour of a third party, such third party would be neither a
necessary nor a proper party to be joined in the execution
proceedings.
3.3. Learned Advocate Mr. Patel would further submit that
as per the provisions of Order 21, Rule 102 of the Civil
Procedure Code, 1908 (hereinafter referred to as ‘CPC‘) a
transferee pendente lite who purchased the suit property, that
too after the passing of the decree, has no right to obstruct
and/or resist the decree and no right to join in the execution.
3.4. Learned Advocate Mr. Patel would submit that the
joining of a transferee pendente lite in the execution would be
nothing but an attempt to delay the execution of the decree,
and thereby also, he should not be allowed to be joined in the
execution.
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3.5. Learned Advocate Mr. Patel would submit that as per
the settled legal position of law, such transferee pendente lite
would not be considered a valid title holder of the suit
property when executed sale deed either during the pendency
of the suit or after the passing of the decree against the
judgment-debtor.
3.6. Learned Advocate Mr. Patel would submit that the
Trial Court has wrongly relied upon the decision of the
Honourable Supreme Court of India in the case Amit Kumar
Shaw and Another vs. Farida Khatoon and Another reported in
(2005) 11 SCC 403, inasmuch as the issue before the
Honourable Supreme Court in the case of Amit Kumar Shah
(supra) was the joining of a transferee pendente lite during the
pendency of an appeal, unlike in execution proceedings.
3.7. Learned Advocate Mr. Patel would submit that the
provisions of Order 22, Rule 10 of the CPC, Order 1, Rule 10
of the CPC read with Section 52 of the Transfer of Property
Act, would not apply in execution proceedings.
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3.8. Learned Advocate Mr. Patel would respectfully submit
that the Trial Court has, in a cavalier manner, without
appreciating the legal position of law, in a routine manner
granted the impugned application, and thereby committed a
gross error of law which requires to be corrected by this Court
while exercising its power under Article 227 of the Constitution
of India.
3.9. Learned Advocate Mr. Patel would respectfully submit
that as per various decisions of the Honourable Supreme Court
as well as this Court, a transferee pendente lite like respondent
No. 1 cannot be allowed to join in the execution proceedings
as he has no right to resist or obstruct the decree which is
sought to be executed by way of execution.
3.10. To buttress his argument, learned Advocate Mr. Patel
would rely upon the decisions
(i) Usha Sinha Vs. Dina Ram and Others reported in
(2008) 7 SCC 144;
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(ii) Valjibhai Arjanbhai Korat vs. Kishorbhai Parbatbhai
Thesiya and Ors reported in AIROnline 2023 GUJ 2128
(iii) Dilip Kumar vs. Vijay Bahadur Singh and Ors
reported in AIR 2009 Madhya Pradesh 165.
3.11. Making the above submissions, Learned Advocate Mr.
Patel would request this Court to allow the present application.
4. SUBMISSIONS OF RESPONDENT NO. 1 – THIRD PARTY
4.1. Learned Advocate Ms. Megha Jani appearing for
respondent no.1 – third party would submit that there is no
gross error of law, much less any jurisdictional error,
committed by the Executing Court while allowing the
impugned application filed by respondent No. 1 – the third
party.
4.2. Learned Advocate Ms. Jani would respectfully submit
that respondent No. 1, having purchased the suit property
pending execution of the decree, should be considered a
transferee pendente lite required to be joined in the execution
proceedings.
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4.3. Learned Advocate Ms. Jani would further submit that
as per Section 52 of the Transfer of Property Act, read with
Order 1 Rule 10 of the CPC and so also, Order 22, Rule 10 of
the CPC, any such transferee pendente lite is required to be
joined in the execution petition.
4.4. Learned Advocate Ms. Jani would further submit that
the issue germane in the matter is squarely covered by the
decision of the Honourable Supreme Court in the case of Amit
Kumar Shaw (supra) and as such, there is no merit in the
present writ application, which may not be entertained by this
Court having limited jurisdiction under Article 227 of the
Constitution of India to interfere with the order passed by the
Executing Court.
4.5. Learned Advocate Ms. Jani would submit that apart
from Amit Kumar Shah (supra), as per various decisions of the
Honourable Supreme Court, , interpreting the aforesaid
provisions of law, it is held that a transferee pendente lite is
required to be joined in the suit or proceeding, which includes
execution proceedings. It is submitted that the judgments
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which are relied upon by Learned Advocate Mr. Patel would
not be applicable to the facts of the case; rather, they deal
with an issue which is yet to come, as the execution
proceedings have not even reached the stage of Order 21, Rule
34 of the CPC.
4.6. Learned Advocate Ms. Jani would respectfully submit
that the decision of this Court in the case of Valjibhai (supra)
is distinguishable on the facts of that case, inasmuch as apart
from an application to be joined in execution proceedings filed
by the transferee pendente lite, he had also raised obstruction
and resistance against the execution of the decree and in light
of these peculiar facts and circumstances of the case, when the
Executing Court rejected all the attempts made by the
transferee pendente lite to resist the decree, this Court, while
exercising its jurisdiction under Article 227 of the Constitution
of India, did not disturb such order passed by the Executing
Court.
4.7. To buttress her argument, Learned Advocate Ms. Jani
would rely upon the decisions of Amit Kumar Shah (supra),
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and Devendra Kumar Sarewgee and Other vs. Purbanchal
Estates (P) LTD and Others reported in (2006) 9 SCC 199,
Yogesh Goyanka vs. Govind and Others reported in (2024) 7
SCC 524 and Thomson Press (India) Limited vs. Nanak Builders
and Investors Private Limited and Others reported in (2013) 5
SCC 397 and Khemchand Shankar Chaudhari v. Vishnu Hari
Patil, reported in (1983) 1 SCC 18.
5. Heard the earned Advocates appearing for the respective
parties at length. No other and further submissions are made.
6. The short but interesting question that falls for my
consideration is, Whether a transferee pendente lite can be
joined in the execution proceedings or not?.
7. ANALYSIS
8. It remains undisputed that an agreement to sell was
executed by respondent No. 2 and others in relation to the suit
property in favour of petitioner, and due to a dispute between
the parties, Regular Civil Suit No. 4469 of 1996 came to be
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filed by the petitioner against respondent No. 2 and others
seeking specific performance of the said agreement to sell.
9. It appears that during the pendency of the suit, a
compromise arrived between the parties to the suit, whereby a
consent decree was passed by the Trial Court on 24th July
1999. Thereafter, an Execution Application No. 767 of 2001
appears to have been instituted by the petitioner against the
judgment-debtor.
10. It further appears that during the pendency of the
execution application, the judgment-debtor executed a
registered sale deed on 13.08.2009 in favour of respondent No.
1. On the strength of such registered sale deed, respondent No.
1 has filed the impugned application below Exhibit 47 on
09.04.2010 in the aforesaid execution application. As noted
hereinabove, the same was allowed by the Executing Court
relying upon the decision of the Honourable Supreme Court in
the case of Amit Kumar Shah and Others (supra).
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11. Before adverting to and answering the issue germane in
the present application, first of all, I would like to refer the
relevant provisions of law, i.e., Order 1, Rule 10 of the CPC,
Order 22, Rule 10 of the CPC, and Section 52 of the Transfer
of Property Act, which read as under:
ORDER 1 RULE 10 OF CPC
10. Suit in name of wrong plaintiff.–(1) Where a suit has been
instituted in the name of the wrong person as plaintiff or where it is
doubtful whether it has been instituted in the name of the right
plaintiff, the Court may at any stage of the suit, if satisfied that the
suit has been instituted through a bona fide mistake, and that it is
necessary for the determination of the real matter in dispute so to
do, order any other person to be substituted or added as plaintiff
upon such terms as the Court thinks just.
(2) Court may stirke out or add parties.–The Court may at any
stage of the proceedings, either upon or without the application of
either party, and on such terms as may appear to the Court to be
just, order that the name of any party improperly joined, whether as
plaintiff or defendant, be struck out, and that the name, of any
person who ought to have been joined, whether as plaintiff or
defendant, or whose presence before the Court may be necessary
in order to enable the Court effectually and completely to adjudicate
upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next
friend or as the next friend of a plaintiff under any disability without
his consent.
(4) Where defendant added, plaint to be amended–Where a
defendant is added, the plaint shall, unless the Court otherwise
directs, be amended in such manner as may be necessary, and
amended copes of the summons and of the plaint shall be served
on the new defendant and, if the Court thinks fit, on the original
defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15
of 1877), section 22, the proceedings as against any person added
as defendant shall be deemed to have begun only on the service of
the summons.
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ORDER 22 RULE 10 OF CPC
10. Procedure in case of assignment before final Order in suit
(1) In other cases of an assignment, creation or devolution of any
interest during the pendency of a suit, may, by leave of the Court,
be continued by or against the person to or upon whom such
interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall
be deemed to be an interest entitling the person who procured such
attachment to the benefit of sub-rule (1).
SECTION 52 OF TRANSFER OF PROPERTY ACT
52. Transfer of property pending suit relating thereto.–
During the pendency in any Court having authority within the limits
of India excluding the State of Jammu and Kashmir or established
beyond such limits by the Central Government of any suit or
proceedings which is not collusive and in which any right to
immoveable property is directly and specifically in question, the
property cannot be transferred or otherwise dealt with by any party
to the suit or proceeding so as to affect the rights of any other party
thereto under any decree or order which may be made therein,
except under the authority of the Court and on such terms as it
may impose.
Explanation.–
For the purposes of this section, the pendency of a suit or
proceeding shall be deemed to commence from the date of the
presentation of the plaint or the institution of the proceeding in a
Court of competent jurisdiction, and to continue until the suit or
proceeding has been disposed of by a final decree or order and
complete satisfaction or discharge of such decree or order has
been obtained, or has become unobtainable by reason of the
expiration of any period of limitation prescribed for the execution
thereof by any law for the time being in force.
12. A bare reading of the aforesaid provisions would indicate
that respondent No. 1, having purchased the suit property
pending the execution proceedings, would surely be considered
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a transferee pendente lite. Once a third party purchases the
subject matter of the suit property, either pending the suit or
the execution proceedings as the case may be, he would step
into the shoes of the original owner from whom he purchased
the suit property; thereby, he will be treated as a transferee
pendente lite.
13. The Honourable Supreme Court of India in the case of
Amit Kumar Shah (supra), in clear terms, held that a transferee
is not entitled, as of right, to be made a party to the suit,
though the Court has the discretion to make him a party.
Having noticed above referred provisions of law, the
Honourable Supreme Court in the case of Amit Kumar Shah
(supra) held thus:-
“13. In this connection, the provisions of Section 52 of the Transfer
of Property Act, 1882 which has been extracted above may be
noted.
14. An alienee pendente lite is bound by the final decree that may
be passed in the suit. Such an alienee can be brought on record
both under this rule as also under Order 1 Rule 10. Since under
the doctrine of lis pendens a decree passed in the suit during the
pendency of which a transfer is made binds the transferee, his
application to be brought on record should ordinarily be allowed.
15. Section 52 of the Transfer of Property Act is an expression of
the principle “pending a litigation nothing new should be
introduced”. It provides that pendente lite, neither party to the
litigation, in which any right to immovable property is in question,Page 13 of 30
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can alienate or otherwise deal with such property so as to affect his
appointment. This section is based on equity and good conscience
and is intended to protect the parties to litigation against
alienations by their opponent during the pendency of the suit. In
order to constitute a lis pendens, the following elements must be
present:-
1. There must be a suit or proceeding pending in a court of
competent jurisdiction.
2. The suit or proceeding must not be collusive.
3. The litigation must be one in which right to immovable
property is directly and specifically in question.
4. There must be a transfer of or otherwise dealing with the
property in dispute by any party to the litigation.
5. Such transfer must affect the rights of the other party that
may ultimately accrue under the terms of the decree or
order.
16. The doctrine of lis pendens applies only where the lis is
pending before a court. Further pending the suit, the transferee
is not entitled as of right to be made a party to the suit, though
the court has a discretion to make him a party. But the
transferee pendente lite can be added as a proper party if his
interest in the subject-matter of the suit is substantial and not
just peripheral. A transferee pendente lite to the extent he has
acquired interest from the defendant is vitally interested in the
litigation, where the transfer is of the entire interest of the
defendant; the latter having no more interest in the property may
not properly defend the suit. He may collude with the plaintiff.
Hence, though the plaintiff is under no obligation to make a lis
pendens transferee a party, under Order 22 Rule 10 an alienee
pendente lite may be joined as party. As already noticed, the court
has discretion in the matter which must be judicially exercised and
an alienee would ordinarily be joined as a party to enable him to
protect his interests. The court has held that a transferee pendente
lite of an interest in immovable property is a representative-in-
interest of the party from whom he has acquired that interest. He is
entitled to be impleaded in the suit or other proceedings where his
predecessor-in-interest is made a party to the litigation; he is
entitled to be heard in the matter on the merits of the case.”
(emphasis supplied)
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14. Likewise, in the recent past, the Honourable Supreme
Court in the case of Yogesh Goenka (supra) had an occasion to
revisit such an issue again, wherein it held thus:-
“16. The fulcrum of the dispute herein concerns the impleadment
of a transferee pendente lite who undisputedly had notice of the
pending litigation. At the outset, it appears pertinent to reiterate the
settled position that the doctrine of lis pendens as provided under
Section 52 of the Act does not render all transfers pendente lite to
be void ab initio, it merely renders rights arising from such transfers
as subservient to the rights of the parties to the pending litigation
and subject to any direction that the Court may pass thereunder.
17. Therefore, the mere fact that RSD was executed during the
pendency of the underlying suit does not automatically render it
null and void. On this ground alone, we find the impugned order to
be wholly erroneous as it employs Section 52 of the Act to nullify
RSD and on that basis, concludes that the impleadment application
is untenable. Contrary to this approach of the High Court, the
law on impleadment of subsequent transferees, as
established by this Court has evolved in a manner that
liberally enables subsequent transferees to protect their
interests in recognition of the possibility that the transferor
pendente lite may not defend the title or may collude with the
plaintiff therein (see the decision of this Court in Amit Kumar
Shaw v. Farida Khatoon [Amit Kumar Shaw v. Farida Khatoon,
(2005) 11 SCC 403] & A. Nawab John v. V.N. Subramaniyam [A.
Nawab John v. V.N. Subramaniyam, (2012) 7 SCC 738 : (2012) 4
SCC (Civ) 324] ).
18. Similarly, we also find fault with the order of the ADJ and its
misplaced reliance on Bibi Zubaida [Bibi Zubaida Khatoon v. Nabi
Hassan Saheb, (2004) 1 SCC 191] . The only principle emerging
from the judgment of this Court in Bibi Zubaida [Bibi Zubaida
Khatoon v. Nabi Hassan Saheb, (2004) 1 SCC 191] is that
transferees pendente lite cannot seek impleadment as a matter of
right and to that extent, we agree with the ADJ. However, Bibi
Zubaida [Bibi Zubaida Khatoon v. Nabi Hassan Saheb, (2004) 1
SCC 191] does not place a bar on impleadment of transferees who
purchase property without seeking leave of the Court. The decision
of the Court in Bibi Zubaida [Bibi Zubaida Khatoon v. Nabi Hassan
Saheb, (2004) 1 SCC 191] turns on its own facts; the Court
rejected the application for joinder therein noting that the
underlying suit was pending since 1983 and upheld the finding of
the trial court that the subsequent purchaser was not bona fide andPage 15 of 30
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attempted to complicate and delay the underlying suit. Therefore,
the judgment in Bibi Zubaida [Bibi Zubaida Khatoon v. Nabi
Hassan Saheb, (2004) 1 SCC 191], being distinguishable on facts,
does not assist the respondents herein.”
(emphasis supplied)
15. Likewise, in the case of Thomson Press (India) Limited
(supra), the Supreme Court also had an occasion to deal with
such an issue of joining a transferee pendente lite in the suit
proceedings, wherein in paras 26, 33, 37, and 44 it observed
and held thus:-
“26. It would also be worth discussing some of the relevant laws in
order to appreciate the case on hand. Section 52 of the Transfer of
Property Act speaks about the doctrine of lis pendens. Section 52
reads as under:
“52. Transfer of property pending suit relating
thereto.–During the pendency in any court having
authority within the limits of India excluding the State of
Jammu and Kashmir or established beyond such limits
by the Central Government of any suit or proceeding
which is not collusive and in which any right to
immovable property is directly and specifically in
question, the property cannot be transferred or
otherwise dealt with by any party to the suit or
proceeding so as to affect the rights of any other party
thereto under the decree or order which may be made
therein, except under the authority of the court and on
such terms as it may impose.
Explanation.–For the purposes of this section, the
pendency of a suit or proceeding shall be deemed to
commence from the date of the presentation of the
plaint or the institution of the proceeding in a court of
competent jurisdiction, and to continue until the suit or
proceeding has been disposed of by a final decree or
order and complete satisfaction or discharge of such
decree or order has been obtained, or has become
unobtainable by reason of the expiration of any period
of limitation prescribed for the execution thereof by any
law for the time being in force.”
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It is well settled that the doctrine of lis pendens is a
doctrine based on the ground that it is necessary for
the administration of justice that the decision of a court
in a suit should be binding not only on the litigating
parties but on those who derive title pendente lite. The
provision of this section does not indeed annul the
conveyance or the transfer otherwise, but to render it
subservient to the rights of the parties to a litigation.
33. At this juncture, we would also like to refer to Section 19 of the
Specific Relief Act which reads as under:
“19. Relief against parties and persons claiming
under them by subsequent title.–Except as
otherwise provided by this Chapter, specific
performance of a contract may be enforced against–
(a) either party thereto;
(b) any other person claiming under him by a title
arising subsequently to the contract, except a
transferee for value who has paid his money in
good faith and without notice of the original
contract;
(c) any person claiming under a title which, though prior
to the contract and known to the plaintiff, might have
been displaced by the defendant;
(d) when a company has entered into a contract and
subsequently becomes amalgamated with another
company, the new company which arises out of the
amalgamation;
(e) when the promoters of a company have, before its
incorporation entered into a contract for the purpose of
the company and such contract is warranted by the
terms of the incorporation, the company:
Provided that the company has accepted the contract
and communicated such acceptance to the other party
to the contract.”
From the bare reading of the aforesaid provision, it is
manifest that a contract for specific performance may
be enforced against the parties to the contract and the
persons mentioned in the said section. Clause (b) of
Section 19 makes it very clear that a suit for specific
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consideration and without notice of the original contract
which is sought to be enforced in the suit.
37. Taking into consideration all these facts, we have no hesitation
in holding that the appellant entered into a clandestine transaction
with the defendant Sawhneys and got the property transferred in
their favour. Hence the appellant M/s Thomson Press cannot be
held to be a bona fide purchaser, without notice.
44. Having regard to the law discussed hereinabove and in the
facts and circumstances of the case and also for the ends of justice
the appellant is to be added as party-defendant in the suit. The
appeal is, accordingly, allowed and the impugned orders passed
by the High Court are set aside.”
(emphasis supplied)
16. It would also be apposite to place reliance upon the
observations made by the Honourable Supreme Court in the
following decisions, which observed as regards the
impleadment of a transferee pendente lite per se in execution
proceedings, which is the issue germane at hand.
17.1 In the case of Devendra Kumar (supra), wherein it was
observed as under:-
“11. This Court after detailed consideration of the case-law in Raj
Kumar v. Sardari Lal [(2004) 2 SCC 601] has held that the
transferee pendente lite is treated in the eye of the law as a
representative-in-interest of the judgment-debtor and bound by the
decree passed against the judgment-debtor. In case of an
assignment, creation or devolution of any interest during the
pendency of any suit, Order 22 Rule 10 CPC confers a discretion
on the court hearing the suit to grant leave to the person in or upon
whom such interest has come to vest or devolve to be brought on
record. Bringing on a lis pendens transferee on record is not
as of right but in the discretion of the court.
12. To the similar effect is the judgment of this Court in Amit Kumar
Shaw v. Farida Khatoon [JT (2005) 5 SC 20 : (2005) 11 SCC 403] .
It has been observed as follows: (SCC p. 411)Page 18 of 30
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“The doctrine of lis pendens applies only where the lis
is pending before a Court. Further pending the suit, the
transferee is not entitled as of right to be made a party
to the suit, though the Court has a discretion to make
him a party. But the transferee pendente lite can be
added as a proper party if his interest in the subject-
matter of the suit is substantial and not just peripheral.
A transferee pendente lite to the extent he has
acquired interest from the defendant is vitally interested
in the litigation, whether the transfer is of the entire
interest of the defendant; the latter having no more
interest in the property may not properly defend the
suit. He may collude with the plaintiff. Hence, though
the plaintiff is under no obligation to make a lis
pendens transferee a party; under Order 22 Rule 10 an
alienee pendente lite may be joined as party. As
already noticed, the Court has discretion in the matter
which must be judicially exercised and an alienee
would ordinarily be joined as a party to enable him to
protect his interests. The Court has held that a
transferee pendente lite of an interest in immovable
property is a representative-in-interest of the party from
whom he has acquired that interest. He is entitled to be
impleaded in the suit or other proceedings where the
transferee pendente lite is made a party to the
litigation; he is entitled to be heard in the matter on the
merits of the case.”
13. In view of the law laid down by this Court in the aforesaid two
judgments, we are unable to find any fault with the view taken by
the High Court. This apart the High Court has already impleaded
Respondent 1 as a party-respondent in the proceedings in the
same suit arising from the determination of mesne profits. If
Respondent 1 is to be impleaded as a party-respondent in the
execution petition relating to the mesne profits we find no reason
not to implead it as a party-petitioner in the execution of the decree
for ejectment.”
(emphasis supplied)
17.2 In another one, in the case of Khemchand Shankar
Choudhari (supra) also, the Honourable Supreme Court, having
interpreted the provisions of Section 52 of the Transfer of
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Property Act read with Order 22, Rule 10 of the CPC, allowed
the transferee pendente lite to be joined in the execution
proceedings, wherein in paras 1, 6, and 7, it observed and
held as under:-
“1. The short question involved in these appeals by special leave is
whether the transferees during the pendency of a suit for partition
of parts of an estate assessed to payment of land revenue to the
Government which is the subject-matter of the suit have locus
standi to appear before the Revenue Authorities in proceedings
under Section 54 of the Code of Civil Procedure and ask for an
equitable partition of the lands even though they had not been
impleaded as parties to the suit in the civil court.
6. Section 52 of the Transfer of Property Act no doubt lays down
that a transferee pendente lite of an interest in an immovable
property which is the subject-matter of a suit from any of the
parties to the suit will be bound insofar as that interest is
concerned by the proceedings in the suit. Such a transferee is a
representative in interest of the party from whom he has acquired
that interest. Rule 10 of Order 22 of the Code of Civil Procedure
clearly recognises the right of a transferee to be impleaded as a
party to the proceedings and to be heard before any order is made.
It may be that if he does not apply to be impleaded, he may suffer
by default on account of any order passed in the proceedings. But
if he applies to be impleaded as a party and to be heard, he has
got to be so impleaded and heard. He can also prefer an appeal
against an order made in the said proceedings but with the leave of
the appellate court where he is not already brought on record. The
position of a person on whom any interest has devolved on
account of a transfer during the pendency of any suit or a
proceeding is somewhat similar to the position of an heir or a
legatee of a party who dies during the pendency of a suit or a
proceeding, or an Official Receiver who takes over the assets of
such a party on his insolvency. An heir or a legatee or an Official
Receiver or a transferee can participate in the execution
proceedings even though their names may not have been shown in
the decree, preliminary or final. If they apply to the court to be
impleaded as parties they cannot be turned out. The Collector who
has to effect partition of an estate under Section 54 of the Code of
Civil Procedure has no doubt to divide it in accordance with the
decree sent to him. But if a party to such a decree dies leaving
some heirs about whose interest there is no dispute should he foldPage 20 of 30
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up his hands and return the papers to the civil court? He need not
do so. He may proceed to allot the share of the deceased party to
his heirs. Similarly he may, when there is no dispute, allot the
share of a deceased party in favour of his legatees. In the case of
insolvency of a party, the Official Receiver may be allotted the
share of the insolvent. 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”.
7. In view of the foregoing, the orders of the High Court, the State
Government and the Commissioner holding that the appellants had
no locus standi to ask the Collector to effect an equitable partition
have got to be set aside and they are accordingly set aside. The
partition effected by the Collector is also set aside.”
(emphasis supplied)
17. A conjoint reading of the aforesaid decisions and position
of law which emerges out of the same would clearly indicate
that a transferee pendente lite can be joined in the suit or
proceedings, including execution proceedings, albeit not as a
matter of right, but it is in the discretion of the court. When
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such positive discretion was exercised by the Trial Court while
passing the impugned order, it can be gainsaid that it is
without jurisdiction. There is as such no perversity while
passing the impugned order.
18. According to my view, there is no bar under the law that
in no given case, the transferee pendente lite can be joined in
the execution proceedings. There is no absolute bar under law,
at least Learned Advocate Mr. Patel would not during course
of hearing in a position to show it to this Court.
19. So far as the decisions canvassed by Learned Advocate
Mr. Patel are concerned, as such, they are not applicable to
the issue germane in the matter. Nonetheless, I would like to
deal each one of them as under:-
19.1. In the case of Usha Sinha (supra), the Honourable
Supreme Court had an occasion to deal with the right of a
transferee pendente lite who purchased the suit property during
the pendency of the suit, wherein the suit was decreed against
the original owner. The right of the transferee pendente lite
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vis-à-vis the execution of the decree sought to be executed was
the issue, inasmuch as subsequent to the execution of the sale
deed, he filed a substantive suit and objected to the execution
of the decree. In light of that peculiar facts, the Honourable
Supreme Court, considering provisions of Rules 97 to 106 of
Order 21 of the CPC, turned down the objections of the
transferee pendente lite, which is not a similar case here.
19.2. According to this Court, what was discussed and
upheld by the Honourable Supreme Court in the case of Usha
Sinha (supra) was that a transferee pendente lite has no right
to object/resist/obstruct to the decree as barred under Rule 102
19.3. Nonetheless, the issue was never germane before the
Supreme Court as to whether the transferee pendente lite can
be joined in the execution proceedings or not.
20. So far as the decision of the coordinate Bench of this
Court in the case of Valjibhai (supra) is concerned, it is true
that out of the three sets of orders passed by the Executing
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Court while rejecting each application filed by the transferee
pendente lite, one of which was an application to be joined in
the execution proceedings. The coordinate Bench of this Court
had not entertained the plea of the transferee pendente lite by
rejecting all such applications, having confirmed the orders
passed by the Executing Court.
20.1. To better appreciate the controversy which was so
germane in the case of Valjibhai (supra), the relevant facts and
observations of the coordinate Bench of this Court need
reproduction, which are as under:-
“5.2. Since respondent No.2 did not satisfy judgment and decree
passed in Special Civil Suit, respondent No.1 in order to get
judgment and decree executed in his favour filed Execution
Application No.4 of 2011 before the competent Court at Dhoraji. In
this proceedings, decree holder i.e. respondent No.1 filed
application Exh.49 under Order 21 Rule 96,97, 98 and 104 for
removal of obstruction and to get decree executed. Vide order
dated 07.12.2017, competent Court at Dhoraji passed order in
favour of judgment holder. That order has been challenged by the
present petitioner claiming that he is not bound by the judgment
and decree passed in Special Civil Suit as he is having separate
and independent right in the suit land. Another fact which is
required to be noticed is that after passing judgment and decree
dated 30.09.2011 in Special Civil Suit, respondent No.2 instead of
obeying judgment and decree executed registered sale deed dated
31.01.2012 qua suit land in favour of the petitioner i.e. Valjibhai
Arjanbhai Korat.
5.3. In Darkshat proceedings as order was passed below Exh.49
for removal of obstruction, the petitioner – Valjibhai Arjanbhai Korat
moved application Exh.90 to join him as party in the execution
proceedings. Thereafter, he again moved application Exh.91 underPage 24 of 30
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Order 21 Rule 102 seeking relief not to take away his possession
of the suit land and application Exh.93 filed under Order 21 Rule
29 of CPC to stay the proceedings of execution. By even date
separate orders, three applications are rejected by the competent
Civil Court. Being aggrieved and dissatisfied with the order passed
below Exh.90, Exh.91 and Exh.93 in Execution proceedings, the
petitioner filed Writ Petition No.8170 of 2018. Whereas, order
passed below Exh.49 has been challenged by way of Writ Petition
No.1386 of 2018.
18. At this stage, at the cost of repetition, it is to be noted that in
the present case even as per the case of the petitioner, he has
purchased suit land after judgment and decree is passed in Special
Civil Suit in favour of respondent No.1.
19. It is clear case where the petitioner is not foreign to the
judgment and decree passed in Special Civil Suit. He has stepped
in the shoes of judgment debtor. He has no better right, title and
interest than judgment debtor and as such it is clear that he is
bound by decree. Application of Order 21 Rule 98 as well as Order
21 Rule 102 of CPC makes abundantly and explicitly clear that
transferee pendente lite suit or execution proceedings cannot claim
better title or independent title than judgment debtor. He has no
right to offer resistance or obstruction to the judgment and decree
sought to be executed in execution proceedings.
25. On perusal of impugned order, it appears that the petitioner
has asked relief for joining him as party defendant. The petitioner
cannot be joined as party defendant in execution as he has no
independent right in the suit land. He is bound by decree operating
against judgment debtor. Application under Order 21 Rule 102 in
fact is not helping the petitioner to get any relief. Scope of Order 21
Rule 102 is discussed herein above and any mischief therein is
favouring judgment holder. Another application under Order 21
Rule 29 of CPC to claim that Executing Court was required to stay
proceedings as one suit is pending between judgment holder and
the petitioner. Reading of Order 21 Rule 29 of CPC is totally
misconceived. In view of Order 21 Rule 29 of CPC, the Court may
stay execution of decree in execution proceedings provided that
suit is pending between judgment debtor and judgment holder.
However, that proposition is not applicable to the present case
since the petitioner has no independent right to resist or obstruct
possession of immovable property as he is transferee pendente lite
and bound by decree. The petitioner cannot claim that resistance is
to be adjudicated in view of Order 21 Rule 97 of CPC, the
application Exh.46 in Execution Proceedings filed by the judgment
holder has rightly been decided by the Court below.”
(emphasis supplied)
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20.2. So, it appears from the aforesaid peculiar facts that
the transferee pendente lite, having been faced with the
execution proceedings which reached up to the stage of taking
possession of the suit property, at that stage, the transferee
pendente lite appeared before the Executing Court having
raised obstruction and resistance to the decree passed against
his predecessor.
20.3. At that stage, in light of the provisions of Order 21,
Rule 102 of the CPC and as per the settled legal position of
law, the Executing Court not only rejected such
resistance/obstruction application but also simply rejected the
application to be joined in the execution proceedings and so
also for a stay of the execution proceedings.
20.4. In light of such peculiar facts and circumstances of the
case, when the Executing Court did not exercise its discretion
in favour of the applicant, the coordinate Bench of this Court
did not disturb the said impugned orders passed by the
Executing Court while exercising its supervisory jurisdiction
under Article 227 of the Constitution of India.
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20.5. Nonetheless, this judgment cannot be read in isolation
whereby it can be concluded that a transferee pendente lite
can never be joined in an execution proceeding.
20.6. This Court is conscious of the fact that any law laid
down by a coordinate Bench of this Court is binding on this
Court, and if I do not agree with such a view, judicial
propriety demands that the matter be referred to the Division
Bench.
20.7. Having so observed hereinabove, the decision in the
case of Valjibhai (supra) passed by a coordinate Bench of this
Court was passed on the peculiar facts of that particular case,
wherein there is no absolute proposition of law laid down that
a transferee pendente lite can never be joined in execution
proceedings. In the present case, the execution is yet to reach
to the stage of Order 21 Rule 34 of CPC.
21. Per Contra, in light of the direct pronouncement of law
as held by the Honourable Supreme Court in the cases of Amit
Kumar Shah (supra), Devendra Kumar (supra), and Khemchand
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Shankar Choudhari (supra), read with Yogesh Goenka (supra),
there is no absolute bar under the law whereby a transferee
pendente lite can never be joined in execution proceedings.
22. Thus, this Court would not even like to refer the matter
to the Division Bench as the decision of the coordinate Bench
passed in Valjibhai (supra) is distinguishable on facts.
23. It is a now well-settled legal position of law that when
the Trial Court exercises its discretion in favour of an
applicant, this Court ordinarily should not interfere with such
discretion used by the Trial Court unless it is supercilious,
arbitrary, or contrary to any provisions of law and also settled
principles of law.
23.1. It would be apt to refer to and rely upon the decision
of the Supreme Court in the case of Sheo Raj Singh v. Union
of India reported in (2023) 10 SCC 531, wherein in para 33 it
is held as under:
“33. Be that as it may, it is important to bear in mind that we are not hearing
an application for condonation of delay but sitting in appeal over a
discretionary order of the High Court granting the prayer for condonation of
delay. In the case of the former, whether to condone or not would be the only
question whereas in the latter, whether there has been proper exercise of
discretion in favour of grant of the prayer for condonation would be thePage 28 of 30
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question. Law is fairly well-settled that “a court of appeal should not
ordinarily interfere with the discretion exercised by the courts below”. If any
authority is required, we can profitably refer to the decision in Manjunath
Anandappa v. Tammanasa, 2003 10 SCC 390. which in turn relied on the
decision in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha,
1980 2 SCC 593. where it has been held that “an appellate power interferes
not when the order appealed is not right but only when it is clearly wrong”.
(emphasis supplied)
24. CONCLUSION
24.1. In light of what is observed hereinabove, it can be
concluded that a transferee pendente lite can be joined in the
execution proceedings and as such, there is no clear bar under
the law that in no circumstances, a transferee pendente lite
cannot be joined in the execution proceedings.
24.2. Having so held, when the Executing Court exercised its
discretion in favour of the applicant – respondent No. 1 herein,
while passing the impugned order whereby, he is allowed to
be joined as a transferee pendente lite in the execution
proceedings, such order, not having been found to be either
erroneous, perverse, or contrary to any provisions of law, is
not required to be disturbed by this Court while exercising its
power under Article 227 of the Constitution of India.
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24.3. In view of the foregoing conclusion, the present
application, being bereft of any merits, requires to be rejected,
which is hereby REJECTED. Rule is discharged. No order as to
costs. Interim relief stands vacated forthwith. The civil
application is also disposed of accordingly.
25. The Executing Court shall proceed with the execution and
see to it that it is adjudicated and completed within six
months from the date of the receipt of the copy of this order.
[See Periyammal (dead) Through Lrs & Ors. Vs. V. Rajamani
& Anr., reported in 2025 SCC OnLine SC 507 at para 74].
Sd/-
(MAULIK J.SHELAT,J)
MOHD MONIS
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