A Transferee Pendente Lite Is Bound By Decree Just As Much As He Was Party To Suit: Bombay High Court
The Bombay High Court said that the purpose of lis pendens is to ensure that the process of the Court is not subverted and rendered infructuous and in the absence of such doctrine, a Defendant could defeat the purpose of the Suit by alienating the suit property.
Justice Madhav J. Jamdar, Bombay High Court
The Bombay High Court observed that a transferee pendente lite is bound by the Decree just as much as he was a party to the Suit.
The Court observed thus in Second Appeals challenging the legality and validity of the Judgment and Decree passed by the Civil Judge, Senior Division, Pune (Executing Court) in an Application.
A Single Bench of Justice Madhav J. Jamdar elucidated, “As held in Sanjay Verma (supra), the doctrine of lis pendense is in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit.”
The Bench said that the purpose of lis pendens is to ensure that the process of the Court is not subverted and rendered infructuous and in the absence of the doctrine of lis pendens, a Defendant could defeat the purpose of the Suit by alienating the suit property.
Senior Advocate Nikhil Sakhardande and Advocate Siddhesh Bhole appeared for the Appellants while Advocates Rajanish Bhonsale and Shriram S. Kulkarni (Amicus Curiae) appeared for the Respondents.
Case Background
An Application was filed by the Original Plaintiff (Respondent) under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (CPC) for removal of obstructionists i.e., Appellants from the suit property and seeking prayer that vacant and peaceful possession of the suit property be handed over to the Respondent. The obstructionists filed objection and the Executing Court allowed the Application and rejected the objection of the obstructionists. The Executing Court issued possession warrant under Order XXI Rule 97 of CPC by directing removal of obstruction in execution of Decree and further directed the obstructionists i.e., Appellants to vacate the premises within one month from the date of the Order. The said Judgment and Decree was challenged by the obstructionists by filing Regular Civil Appeals. Both the Appeals were dismissed by the common Judgment and Decree passed by the District Judge (Appellate Court). Being aggrieved by the same, the Second Appeals were filed before the High Court.
Reasoning
The High Court in the above regard, noted, “It is settled legal position that the principle of lis pendens enshrined in Section 52 of the TP Act is the principle of public policy. Although the mere pendency of a Suit does not prevent parties dealing with the property constituting the subject matter of the suit, what is contemplated by Section 52 is that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the Suit unless the property was alienated with the permission of the court and then in that case, the same will be subject to the conditions put up by the Court.”
The Court remarked that if the submissions of the Senior Counsel are accepted, then as a result of the same by accepting obstruction of the Appellants, the Execution Petition will have to be dismissed.
“The same will be completely contrary to Section 52 of the TP Act and the settled legal position concerning the same. If the said submission is accepted, then what is laid down by the Supreme Court in Jayaram Mudaliar (supra) in the year 1972 that the same will have effect that the Courts have no control over the subject matter of litigation and party to Suit, particularly Defendant litigating before the Court can severally remove any part of the subject-matter outside the power of the court to deal with it and thus make the proceedings infructuous”, it added.
The Court held that there is no substance in any of the substantial questions of law raised by the Appellants. However, in the interest of justice, the Court extended ad interim relief for a period of 3 months.
Accordingly, the High Court dismissed the Second Appeals.
Cause Title- Alka Shrirang Chavan & Anr. v. Hemchandra Rajaram Bhonsale & Ors. (Neutral Citation: 2024:BHC-AS:51079)
Appearance:
Appellants: Senior Advocate Nikhil Sakhardande, Advocates Siddhesh Bhole, Ashish Venugopal, and Ashwin Pimpale
Respondents: Advocates Rajanish Bhonsale and Shriram S. Kulkarni.
