Order 21 Rule 102 CPC: Transferees Pendente Lite

The Bar Against Transferees Pendente Lite: An Analysis of Order 21 Rule 102 of the Civil Procedure Code, 1908 in India

Introduction

The execution of decrees is the final and most crucial stage in civil litigation, representing the fruition of a judicial pronouncement. The Code of Civil Procedure, 1908 (CPC), under Order 21, provides an elaborate mechanism for the execution of decrees and orders. However, this process is often fraught with challenges, including obstructions and claims raised by third parties. A significant provision designed to prevent the frustration of decrees by transfers of property made during the pendency of litigation is Order 21 Rule 102. This rule specifically addresses the rights, or lack thereof, of a transferee pendente lite to resist or obstruct the execution of a decree for possession of immovable property.

This article undertakes a comprehensive analysis of Order 21 Rule 102 of the CPC, examining its legislative intent, its deep-rooted connection with the doctrine of lis pendens, and its interpretation by the judiciary in India. Drawing extensively upon the provided reference materials, including landmark judgments of the Supreme Court of India and various High Courts, this paper aims to elucidate the scope, application, and implications of this pivotal rule in the realm of Indian civil procedure.

The Statutory Framework: Order 21 Rule 102 and its Legislative Intent

Order 21 of the CPC is a self-contained code for the execution of decrees. Within this Order, Rules 97 to 103 deal with resistance or obstruction to possession of immovable property. Order 21 Rule 102 carves out a specific exception concerning transferees pendente lite. The rule, as quoted in Usha Sinha v. Dina Ram And Others[1] and Smt. Parvathi Priyadarshi v. C. Om Prakash[2], states:

"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."

The legislative intent behind Rule 102 is clear: to safeguard the efficacy of judicial decrees and prevent judgment-debtors from rendering decrees for possession infructuous by alienating the subject property during the pendency of the suit. It aims to curb mischievous transfers designed to delay or defeat the execution process. By stipulating that the provisions of Rules 98 (orders after adjudication of resistance or obstruction) and 100 (adjudication of complaint by dispossessed person, other than judgment-debtor) do not apply to such transferees, Rule 102 effectively limits their ability to contest the execution on merits that might otherwise be available to a third party claiming an independent right.

The Doctrine of Lis Pendens: The Foundation of Rule 102

Order 21 Rule 102 is intrinsically linked to, and is a procedural manifestation of, the substantive doctrine of lis pendens, enshrined in Section 52 of the Transfer of Property Act, 1882. Section 52 provides that during the pendency in any Court having authority within the limits of India 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 any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

The Supreme Court in Usha Sinha v. Dina Ram And Others[3] referred to the foundational case of Bellamy v. Sabine (1857), which established the principle that litigation concerning an estate binds subsequent transferees. Rule 102 operationalizes this principle in execution proceedings. As observed in Smt. Parvathi Priyadarshi v. C. Om Prakash, "Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act."[2] Thus, a transferee who acquires property from a judgment-debtor during the pendency of the suit is bound by the decree eventually passed against the judgment-debtor.

Judicial Interpretation and Scope of Order 21 Rule 102

The judiciary in India has consistently interpreted Order 21 Rule 102 to give full effect to its underlying policy. Several key aspects have been clarified through judicial pronouncements.

Defining "Transferee Pendente Lite"

A "transferee pendente lite" is a person to whom the judgment-debtor has transferred the property "after the institution of the suit in which the decree was passed." The term "transferred the property" has been given a wide interpretation. In Vasanjibhai Gokalbhai Patel v. Dy. Collector And Anr., the Gujarat High Court, citing Kangasabhai v. Poornathammal (AIR 1947 Madras 458), held that the words "transferred the property" in Rule 102 should be understood broadly to include both 'transfer of title' and 'transfer of possession'.[4] The judgment debtor surrendering possession was deemed to have "transferred" the property.[4]

The question of whether involuntary sales fall under this definition was considered in Nagendra Nath Sau Decree Holder, v. Ram Krishna Sau Claimant, Opposite Party. The Calcutta High Court dealt with a purchaser in a rent execution sale held during the pendency of a partition suit. The court noted conflicting views but preferred the stance that such a purchaser is indeed covered, implying that "transfer" is not limited to voluntary acts by the judgment-debtor.[5]

The Limited Nature of Adjudication for Transferees Pendente Lite

The most significant impact of Rule 102 is the curtailment of the scope of adjudication when resistance is offered by a transferee pendente lite. The Supreme Court in Silverline Forum Pvt. Ltd. v. Rajiv Trust And Another[6], a decision extensively relied upon in subsequent cases like Uttam Murarikadam v. Hajira Begum Nisar And Others[7], Smt. Parvathi Priyadarshi v. C. Om Prakash[2], and Mahesh Electronics v. Ramkumar dead By Lrs AND OTHERS[8], clarified this position:

"No doubt if the resistance was made by a transferee pendente lite of the judgement-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102."[2] (quoting Silverline Forum)

Therefore, once it is established that the obstructor is a transferee from the judgment-debtor after the institution of the suit, the executing court is not required to delve into other claims of title or independent rights they might assert. Their fate is tied to that of their transferor, the judgment-debtor. The Supreme Court in Usha Sinha v. Dina Ram And Others unequivocally held that Rule 102 applies to transferees pendente lite, and they cannot seek protection under Rules 98 and 100.[1], [3] This was reiterated in Vimalchand Ghevarchand Jain And Others Review v. Farooq Fakruddin Motiwala.[9]

Interaction with Order 21 Rules 97, 98, 99, 100, and 101

Order 21 Rule 97 allows a decree-holder or purchaser to complain to the court if they are met with resistance or obstruction by "any person." Rule 101 mandates that all questions (including those relating to right, title, or interest in the property) arising between the parties to a proceeding under Rule 97 or Rule 99 shall be determined by the executing court and not by a separate suit.[10] While Shreenath And Another v. Rajesh And Others affirmed the broad scope of Rule 97 to include "any person," including third-party tenants claiming independent rights,[11] Rule 102 acts as a specific exception to this general adjudicatory power when the obstructor is a transferee pendente lite.

As clarified in Usha Sinha, Rule 101 requires a full-fledged inquiry, but Rule 102 explicitly states that Rules 98 and 100 (which provide for orders based on such inquiry and relief to dispossessed persons) do not apply to transferees pendente lite.[1] Therefore, while a transferee pendente lite might technically file an objection, the inquiry under Rule 101 is truncated to the sole question of their status as such a transferee. If confirmed, Rule 102 bars them from the reliefs or detailed adjudication otherwise available under Rules 98 and 100.

The case of Babulal v. Raj Kumar And Others emphasized the executing court's duty to determine questions when objections are raised by non-parties.[12] Similarly, Bhanwar Lal v. Satyanarain And Another directed the executing court to conduct an inquiry for removal of obstruction.[13] However, these general duties are qualified by Rule 102 in the specific scenario of a pendente lite transfer.

The Binding Nature of the Decree

A transferee pendente lite steps into the shoes of the judgment-debtor and is bound by the decree passed in the suit. In B. Gangadhar v. B.G Rajalingam, the Supreme Court held that a tenant claiming through the judgment-debtor is bound by the decree, and their non-impleadment eo nomine is not an impediment to execution.[14] This principle applies with equal, if not greater, force to transferees pendente lite of the property itself.

Specific Considerations and Potential Nuances

Impact of Pending Suits by the Transferee: Contrast with Order 21 Rule 104

Order 21 Rule 104, as explained in Smt. Mira Chatterjee v. Sunil Kumar Chatterjee, provides that an order made under Rule 101 or Rule 103 shall be subject to the result of any suit pending on the date of commencement of the proceeding in which such order is made, if the party against whom the order is made has sought to establish a right to present possession in that suit.[10] However, Rule 102 is a specific disabling provision for transferees pendente lite. The general protection offered by Rule 104 to a party whose pre-existing suit for possession is pending would typically not extend to a transferee pendente lite seeking to resist execution based on a transfer that itself is hit by lis pendens and Rule 102. The specificity of Rule 102 generally overrides the general provision of Rule 104 in such cases.

State-Specific Amendments: The Case of Maharashtra

It is crucial to note that the application of CPC provisions can be affected by state-specific amendments. In Uttam Murarikadam v. Hajira Begum Nisar And Others, the Bombay High Court considered an argument that Rule 102 of Order 21 had been deleted from the CPC (insofar as the State of Maharashtra is concerned) by a notification dated 05.09.1983.[7] The court acknowledged this submission, indicating that if Rule 102 is indeed not applicable in Maharashtra, the consideration of appeals on its touchstone would be vitiated.[7] This highlights the importance of verifying local amendments when dealing with CPC provisions.

Bona Fide Transferees without Notice

The doctrine of lis pendens, and consequently Rule 102, generally applies irrespective of whether the transferee pendente lite had notice of the pending litigation. The rule is founded on public policy and necessity, aiming to prevent the circumvention of court decrees. The hardship to a bona fide purchaser without notice is a consequence they bear for purchasing property subject to litigation.

A Potential Point of Contention: The *Jini Dhanrajgir* Reference

In B M LAKSHMI NARAYANA v. V BHASKAR, a 2023 decision of the Andhra Pradesh High Court, it was noted that counsel for the petitioner relied on the Supreme Court judgment in Jini Dhanrajgir & Anr Vs. Shibu Mathew & Anrs (Civil Appeal Nos.3758 -3796 of 2023). According to the submission, the Supreme Court in that case held that the bar under Rule 102 of Order 21 would not operate in "such circumstances as various questions of fact need to be gone into."[15] Without the full judgment of Jini Dhanrajgir, the precise "circumstances" and the extent of this purported exception remain unclear from the provided reference. This mention, however, suggests that there might be specific factual scenarios where courts could be persuaded to look beyond the strict application of Rule 102, although the overwhelming body of precedent strongly supports the bar. This point, as presented in the reference, indicates an argument made by counsel rather than a settled judicial departure from the established interpretation of Rule 102.

Procedural Implications

Order 21 Rule 102 has significant procedural implications for all parties involved in execution proceedings:

  • For Decree-Holders: It provides a potent tool to overcome obstructions from persons who acquired the property from the judgment-debtor during the suit's pendency, thereby expediting the execution process.
  • For Transferees Pendente Lite: It underscores the principle of caveat emptor (let the buyer beware). Persons acquiring property subject to litigation do so at their own peril and are bound by the outcome of the suit. Their ability to resist execution is severely restricted. As seen in Gokul Prasad v. Chunnilal And Another, an objector who purchased property after the institution of an eviction suit against the tenant (judgment-debtor) was held to be covered by Rule 102.[16]
  • For Executing Courts: It provides a clear mandate to limit the scope of inquiry when dealing with objections from transferees pendente lite, thereby preventing the re-agitation of issues already decided or issues that ought to have been raised by the judgment-debtor. The court's primary task is to ascertain if the transfer was pendente lite.

The Andhra Pradesh High Court in SAMINENI VENU BABU v. MARGADARSI CHIT FUND PVT LTD observed that a stranger to the decree claiming an independent right can resist before dispossession (under Rule 97) or agitate after dispossession (under Rule 99).[17] Rule 102 effectively removes these avenues for a transferee pendente lite beyond the limited inquiry into their status.

Conclusion

Order 21 Rule 102 of the Civil Procedure Code, 1908, stands as a critical bulwark in the law of execution in India, ensuring that the sanctity of judicial decrees is not undermined by transfers of property made during the pendency of litigation. Rooted in the doctrine of lis pendens, this rule reflects a strong public policy against the frustration of court orders and the protraction of legal battles through collusive dealings.

The judiciary, through consistent interpretation, has affirmed that the scope of adjudication for a transferee pendente lite who obstructs execution is narrowly confined to determining their status as such a transferee. Once confirmed, their right to resist or seek protection under other provisions of Order 21 is extinguished. While state-specific amendments or unique factual matrices (as hinted in the reference to Jini Dhanrajgir) might introduce variations or nuanced considerations, the overarching principle of Rule 102 remains robust.

By limiting the rights of transferees pendente lite in execution proceedings, Order 21 Rule 102 plays an indispensable role in upholding the finality of judgments and facilitating the timely and effective realization of justice for decree-holders in India.

References

  1. [1] Usha Sinha v. Dina Ram And Others (Supreme Court Of India, 2008) (Reference Material 9).
  2. [2] Smt. Parvathi Priyadarshi v. C. Om Prakash (Telangana High Court, 2023) (Reference Material 16).
  3. [3] Usha Sinha v. Dina Ram And Others (2008 SCC 7 144, Supreme Court Of India, 2008) (Reference Material 7).
  4. [4] Vasanjibhai Gokalbhai Patel v. Dy. Collector And Anr. (1998 GCD 3 2521, Gujarat High Court, 1998) (Reference Material 22).
  5. [5] Nagendra Nath Sau Decree Holder, v. Ram Krishna Sau Claimant, Opposite Party. (Calcutta High Court, 1959) (Reference Material 13).
  6. [6] Silverline Forum Pvt. Ltd. v. Rajiv Trust And Another (1998 SCC 3 723, Supreme Court Of India, 1998) (Reference Material 6).
  7. [7] Uttam Murarikadam v. Hajira Begum Nisar And Others (2012 SCC ONLINE BOM 382, Bombay High Court, 2012) (Reference Material 20).
  8. [8] Mahesh Electronics v. Ramkumar dead By Lrs AND OTHERS (Uttarakhand High Court, 2019) (Reference Material 17).
  9. [9] Vimalchand Ghevarchand Jain And Others Review v. Farooq Fakruddin Motiwala . (Bombay High Court, 2018) (Reference Material 23).
  10. [10] Smt. Mira Chatterjee v. Sunil Kumar Chatterjee . (Calcutta High Court, 1998) (Reference Material 8).
  11. [11] Shreenath And Another v. Rajesh And Others (1998 SCC 4 543, Supreme Court Of India, 1998) (Reference Material 3).
  12. [12] Babulal v. Raj Kumar And Others (1996 SCC 3 154, Supreme Court Of India, 1996) (Reference Material 1).
  13. [13] Bhanwar Lal v. Satyanarain And Another (1995 SCC 1 6, Supreme Court Of India, 1994) (Reference Material 4).
  14. [14] B. Gangadhar v. B.G Rajalingam . (1995 SCC 5 238, Supreme Court Of India, 1995) (Reference Material 5).
  15. [15] B M LAKSHMI NARAYANA v. V BHASKAR (Andhra Pradesh High Court, 2024) (Reference Material 19, 24).
  16. [16] Gokul Prasad v. Chunnilal And Another (2001 MPHT CG 3 32, Chhattisgarh High Court, 2001) (Reference Material 21).
  17. [17] SAMINENI VENU BABU v. MARGADARSI CHIT FUND PVT LTD (Andhra Pradesh High Court, 2023) (Reference Material 14, 15).
  18. Other references consulted from the provided list include: Vannattankandy Ibrayi v. Kunhabdulla Hajee . (2001 SCC 1 564, Supreme Court Of India, 2000) (Ref 2); Arunachala Reddiar v. Muthusadasiva Mudaliar And Another. (Madras High Court, 1949) (Ref 10); Babbar Sewing Machine Company v. Trilok Nath Mahajan . (Supreme Court Of India, 1978) (Ref 11); Mahabanoo Navroz Kotwal v. Piloo Fali Bomanji (Bombay High Court, 2014) (Ref 12); Baldeo Pandey v. Ram Prasad Raut And Others Opposite Party. (1963 SCC ONLINE PAT 150, Patna High Court, 1963) (Ref 18); M. Sathyan Sundararajan v. K.R.S. Janakiraman And Others (Madras High Court, 2019) (Ref 25); Chawala Mohan Krishna Gupta v. Neelgar Ranganath Others (Karnataka High Court, 2008) (Ref 26).