Supreme Court | Order XXI Rule 102 CPC Bar Not Applicable Where Suit Property Purchased From Third Party and Not Judgment-Debtor
Kiran Raj
The Supreme Court of India Division Bench of Justice Vikram Nath and Justice Sandeep Mehta allowed an appeal against the judgment of the High Court of Bombay at Goa. The Court set aside the High Court’s order that had discontinued proceedings under Order XXI Rules 97 and 101 of the Code of Civil Procedure, 1908. The Supreme Court directed that the Executing Court must continue and conclude the enquiry into the objections filed by the appellant, and determine them on merits without being influenced by prior observations.
The dispute traces its origin to a plot of land measuring 477 square meters located in Panaji, with a two-floor building registered under Matriz No.958. The property was owned by Mrs. Maria Eduardo Apolina Gonsalves Misquita. On 22 February 1977, a portion of 123 square meters on the ground floor was leased to Madan Waman Chodankar, the original respondent, through a registered lease deed.
Subsequently, on 13 March 1977, the respondent entered into a partnership with Dyaneshwar Keshav Malik and others (“Maliks”) to carry out hardware and allied business activities from the leased premises. The tenancy, however, continued in the name of the respondent.
On 16 January 1988, the original owner sold the entire property to M/s Rizvi Estate and Hotels Pvt. Ltd. Thereafter, on 16 April 1988, an agreement was executed between the purchaser and the Maliks for surrender of possession. This arrangement was intended to facilitate demolition and construction of a new multi-storied building, with an assurance that space would be provided to the sub-lessees in the reconstructed premises. The respondent was a confirming party to this agreement.
In 1988, the respondent filed a civil suit for injunction against M/s Rizvi Estate and Hotels Pvt. Ltd., challenging the demolition process. In 1989, the purchaser initiated Rent Case No.17 of 1989 alleging sub-letting by the respondent in violation of the lease. In 1996, the respondent initiated Special Civil Suit No.97/1996/B against the Maliks seeking dissolution of the partnership, recovery of profits, and ejectment. The Maliks, in their written statement, admitted that all rights had been surrendered to M/s Rizvi Estate and Hotels Pvt. Ltd. on 11 April 1988.
The trial court decreed the injunction suit in favour of the respondent on 22 July 1999, restraining M/s Rizvi Estate and Hotels Pvt. Ltd. from demolishing the building. The appeal against this decree was dismissed on 24 December 2001.
On 24 April 2007, M/s Rizvi Estate and Hotels Pvt. Ltd. sold the property to the appellant, Tahir V. Isani, through a registered sale deed. On 5 October 2007, the Maliks executed a surrender deed in favour of the appellant for a consideration of Rs.10 lakhs.
In 2008, the Special Civil Suit No.97/1996/B was decreed ex parte in favour of the respondent when the Maliks ceased contesting the proceedings. Subsequently, Execution Application No.22 of 2008 (B) was filed by the respondent to enforce the decree. In February 2009, the appellant objected under Order XXI Rules 97 and 101 of CPC to the execution proceedings.
On 5 September 2013, the Executing Court framed issues, including the applicability of Section 52 of the Transfer of Property Act, 1882, and continued enquiry. In 2019, after nearly a decade, the legal heirs of the respondent, following his death, filed an application to discontinue the enquiry citing the doctrine of lis pendens. The Executing Court rejected this application on 17 September 2021, holding that the appellant, as owner, had the right to raise objections and that the doctrine of lis pendens was inapplicable.
The respondent’s legal heirs then approached the High Court of Bombay at Goa. On 25 July 2022, the High Court allowed their writ petition, relying on Order XXI Rule 102 of CPC, and discontinued the enquiry. Aggrieved, the appellant preferred the present appeal before the Supreme Court.
The Supreme Court extensively referred to the statutory framework under Order XXI Rules 97–102 of CPC. The Bench recorded: “The whole scheme of Rule 102 of Order XXI intends to preserve the idea of achieving finality of judicial decisions. The provision imbibes the principle of ‘interest reipublicae ut sit finis litium’ i.e., it is in the interest of the State that there should be an end to litigation.”
The Court cited precedent in Usha Sinha v. Dina Ram to reiterate that transferees pendente lite are presumed to be aware of pending litigation. The Court noted: “Rule 102 of Order 21 of the Code thus takes into account the ground reality and refuses to extend helping hand to purchasers of property in respect of which litigation is pending.”
The Bench further observed that Rule 102 does not apply universally but only when a transferee derives title directly from a judgment-debtor. The Court clarified: “If the person who is resisting or obstructing the execution of the decree for possession of such property, is not the transferee of judgment-debtor, i.e. he does not trace his title from judgment-debtor, bar of Rule 102 does not apply to him.”
On facts, the Court recorded that the appellant derived title from M/s Rizvi Estate and Hotels Pvt. Ltd., which traced ownership from the original owner and not from the judgment-debtor Maliks. Thus, the appellant was not a transferee pendente lite of the judgment-debtor.
“The appellant is a bona fide buyer who had bought the suit property from M/s Rizvi Estate and Hotels Pvt. Ltd., vide registered sale deed dated 24th April, 2007. The transferor of the appellant was not a party to the suit bearing Special Civil Suit No.97/1996/B. Thus, even if the appellant did buy the subject-property in 2007, during the pendency of the suit, the bar of Rule 102 of Order XXI does not affect or prohibit the appellant from raising his objections.”
The Court also criticised the delayed application filed by the respondents’ heirs in 2019, terming it belated and untenable: “The filing of the application by the respondent, Ext.D-100 in 2019 after ten years itself was belated and mala fide.”
The Supreme Court concluded that the appeal merited acceptance. It categorically set aside the High Court’s order dated 25 July 2022. The Bench directed: “The impugned order dated 25th July, 2022, passed by the High Court is set aside. The Executing Court is directed to proceed with the enquiry, conclude the same and bring it to its logical conclusion in accordance with law.”
It further clarified: “The Executing Court will decide the application under Order XXI Rules 97 and 101 of CPC on its own merits and uninfluenced by any observations made by us in this order.”
The Court also disposed of all pending applications.
Advocates Representing the Parties
For the Appellant(s): Mr. Ninad Laud, Adv.; Mr. Ivo Dcosta, Adv.; Mr. Guruprasad Naik, Adv.; Ms. Ishani Shekhar, Adv.; Mr. Sahil Tagotra, AOR
For the Respondent(s): Mr. Yashraj Singh Deora, Sr. Adv.; Mr. Priyesh Mohan Srivastava, Adv.; M/S. Mitter & Mitter Co., AOR
Case Title: Tahir V. Isani v. Madan Waman Chodankar (since deceased) through LRs & Ors.
Neutral Citation: 2025 INSC 1044
Case Number: Civil Appeal No….. of 2025 arising out of SLP(C) No.15167 of 2022
Bench: Justice Vikram Nath, Justice Sandeep Mehta
