TMI Blog2008 (3) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1991. In the judgment rendered by Sub-Judge VI, Purnia, it was observed that though the defendants were duly served with the summons and there was publication of summons also in daily newspaper, the defendants did not appear. The case was fixed for ex-parte hearing vide an order dated April 10, 2001. The plaintiff and his witnesses were examined and on the basis of the said evidence, the suit was decreed. It was held that plaintiff had right and title over the suit land and he was entitled for recovery of possession of land shown in Schedule B. 4. The appellant, Binay Kumar Sinha, Pawan Kumar Choudhary and Ratandeo Prasad Choudhary filed Title Suit No. 226 of 2001 in the Court of Sub-Judge I, Purnia against respondent-Dina Ram and others. It was asserted in the plaint that the appellant (Usha Sinha) had purchased the property and was the absolute owner thereof. It was further stated that the respondent (plaintiff of Title Suit No. 140 of 1999) had wrongfully and illegally filed a suit for recovery of possession of property. No notice was served to the defendants, or to the appellant (purchaser of property) and the decree was illegal, inexecutable and null and void. It was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the disposal of Misc. Case No. 13 of 2003. Being aggrieved by the said order, the respondent approached the High Court by filing Revision Petition. The High Court allowed the Revision and set aside the order of the Executing Court which has been challenged by the appellant by invoking Article 136 of the Constitution. 7. We have heard learned counsel for the parties. 8. The learned counsel for the appellant contended that the High Court was wholly in error in allowing the revision filed by the respondent and in setting aside the order passed by the Executing Court granting stay of proceedings in Execution Case. It was submitted that the Executing Court was right in relying on the circumstance that when a substantive suit is filed by the appellant to set aside ex- parte decree passed in favour of the respondent in Title Suit No. 140 of 1999, during the pendency of such suit, execution proceedings ought to be stayed. The Executing Court passed an order in the light of the fact that a suit filed by the appellant was pending final disposal which was a relevant consideration and the said order should not have been interfered with by the High Court. It was also submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such application will proceed to adjudicate it. Rule 101 requires the Court to make full fledged inquiry and determine all questions relating to right, title and interest in the property arising between the parties to the proceeding or their representatives. The Court will then pass an order upon such adjudication (Rule 98). Rule 99 permits any person other than the judgment debtor who is dispossessed by the decree holder or auction purchaser to make an application to Executing Court complaining such dispossession. The Court, on receipt of such application, will proceed to adjudicate it (Rule 100). Rule 103 declares that an order made under Rule 98 or Rule 100 shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. 11. Rule 102 clarifies that Rules 98 and 100 of Order XXI of the Code do not apply to transferee pendente lite. That rule is relevant and material and may be quoted in extenso; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to statutory provisions and case law, the Court negatived the contention, stating If such contention of the learned senior counsel for the appellant is to be accepted, then we are closing our eyes regarding the intention of the statute. It is obvious 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. If any narrow interpretation is given and thereby the purpose of the statute is being defeated, the courts must be careful to avoid such interpretations. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by a transferee pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such 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. 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. (emphasis supplied) [See also Sarvinder Singh v. Dalip Singh, (1996) 5 SCC 539] 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. 22. For invoking Rule 102, it is enough f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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