Punjab-Haryana High Court
Krishan Gopal vs Hupesh on 30 November, 2022
S. No.245
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
****
CR No.7399 of 2019 (O&M)
Date of Decision:30.11.2022
Krishan Gopal .....Petitioner
Vs.
Hupesh .....Respondent
CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA
Present:- Mr. Rakesh Kumar Sharma, Advocate
for the petitioner.
****
DEEPAK GUPTA, J.
This revision is directed against order dated 07.08.2019
(Annexure P.10), whereby learned Executing Court has disposed of the
execution as unexecuted. To avoid confusion, parties shall be referred as per
their status before the Courts below.
2. The civil suit titled 'Krishan Gopal vs. Hupesh'
[CS/55665/2014] filed by the plaintiff (now petitioner) for possession by
way of specific performance of agreement to sell dated 14.10.2011 in
respect of suit land against defendant Hupesh (now respondent), was
decreed by the court of Ld. Civil Judge (Sr. Divn.), Faridabad vide
judgment dated 31.05.2016 (Annexure P.3). Decree was ex-parte, inasmuch
as after putting in appearance and filing the written statement, defendant did
not contest and had been proceeded ex parte on 21.12.2015. In the
execution petition (Annexure P.4) filed by the plaintiff- decree-holder, the
defendant- JD was proceeded ex parte on 01.03.2017. Sale Deed in
pursuance of the decree was executed on 03.08.2018 and got registered on
07.08.2018 in favour of the plaintiff-decree-holder, through Local
Commissioner appointed by the Executing Court. However, on the warrant
1 of 5
CR No.7399 of 2019
of possession, issued by the Executing Court, it was reported by the revenue
authorities that JD had already sold the property and as nothing was
standing in his name, so proceedings for warrant of possession could not be
carried out. On the basis of this report, learned Executing Court vide
impugned order dated 07.08.2019 (Annexure P.10) disposed of the
execution as unexecuted, as counsel for the decree-holder had stated that he
intended to initiate appropriate civil and criminal proceedings against
judgment debtor.
3. Above-said order is assailed by way of this revision by the
plaintiff- decree holder submitting that the learned Executing Court should
have proceeded as per Order 21 Rule 35 of the Code of Civil Procedure by
handing over the possession to the decree holder, even if the possession of
the property was found with a third party bound by the decree. He also
contended that the petitioner has come to know that in order to frustrate the
agreement, during pendency of the suit, the defendant- respondent-
judgment debtor had executed two sale deeds dated 14.09.2015 and
11.05.2016 (Annexures P.8 and P.9) but these sale deeds are hit by the rule
of lis-pendens and so, not binding upon the rights of the petitioner - decree
holder.
4. Notice of motion was issued to the respondent. Despite being
served, as per law, there was no representation on his behalf and so, he was
proceeded ex parte.
5. Having heard learned counsel for the petitioner and having
perused the paper book, I find merit in the revision.
6. Relevant part of Order 21 Rule 35 of CPC reads as under:-
Page No.2 out of 5 pages
2 of 5
CR No.7399 of 2019
"35. DECREE FOR IMMOVABLE PROPERTY.
(1) Where a decree is for the delivery of any immovable property,
possession thereof shall be delivered to the party to whom it has been
adjudged, or to such person as he may appoint to receive delivery on
his behalf, and, if necessary, by removing any person bound by the
decree who refuses to vacate the property.
(2)xxxxxxxxxxxx
(3) xxxxxxxxxx"
7. It is clear from the above-said provision that when there is a
decree for delivery of immovable property, possession is to be delivered to
the decree holder. If necessary, said possession is to be delivered by
removing any person bound by the decree, who refuses to vacate the same.
8. In the present case, sale deeds dated 14.09.2015 and
11.05.2016 (Annexures P.8 and P.9) as referred by the petitioner have been
executed by the respondent- JD during pendency of the suit, which earlier
culminated into the decree for specific performance. Though, it is not clear
from the report of the revenue authorities as to which third party was in
possession of the property in dispute when warrant of possession was
sought to be executed, but it was for the Executing Court to ensure the
delivery of possession to the decree holder even by removing any person
bound by the decree, who refused to vacate the property.
9. It is settled position of law that a purchaser of the suit property
during pendency of litigation has no right to resist or obstruct execution of
the decree passed by the competent Court, as doctrine of lis-pendens
prohibits a party from dealing with the property, which is a subject-matter of
the suit. Lis-pendens itself is treated as constructive notice to purchaser that
Page No.3 out of 5 pages
3 of 5
CR No.7399 of 2019
he is bound by decree to be passed in the pending suit. Said position is
clarified even by Rule 102 of Order 21 CPC to the effect that there should
be no resistance 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 Rule 98 or 100 of
Order XXI CPC. Reference in this regard can be made to Usha Sinha Vs.
Dina Ram and others, 2008(3) RCR (Civil) 145 (SC). After making
reference of Silverline Forum Pvt. Ltd. v. Rajiv Trust, (1998) 3 SCC 723, it
was held as under:
"21. We are in respectful agreement with the proposition of law laid
down by this Court in Silverline Forum. In our opinion, the doctrine is
based on the principle that the person purchasing property from the
judgment debtor during the pendency of the suit has no independent
right to property to resist, obstruct or object execution of a decree.
Resistance at the instance of transferee of a judgment debtor during
the pendency of the proceedings cannot be said to be resistance or
obstruction by a person in his own right and, therefore, is not entitled
to get his claim adjudicated."
10. In the present case, the decree for specific performance having
been already passed against the respondent- judgment debtor, who neither
contested the suit nor appeared in the execution, was bound to deliver the
possession. Even if he had sold the property to some third party during
pendency of the suit, the transferee was bound to vacate the property and it
was for the Executing Court to ensure the delivery of possession to the
decree holder by executing the warrant.
11. In view of the above, the impugned order cannot be sustained.
Page No.4 out of 5 pages
4 of 5
CR No.7399 of 2019
Same is set aside. Revision is accepted. The Executing Court is directed to
proceed further in accordance with law so as to deliver possession of the
suit property to the decree holder- petitioner by ensuring the execution of
the warrants of possession.
November 30, 2022 ( DEEPAK GUPTA )
renu JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
Page No.5 out of 5 pages
5 of 5
