PRITAM SINGH deceased through LRs Waryam Singh and others vs SANTOSH KUMARI
- Court
- High Court of Himachal Pradesh
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 461 of 2008
Reserved on: 13.10.2026
Date of Decision: 29.10.2026
Pritam Singh (deceased) through LRs ...Appellants
Versus
Santosh Kumari & ors. ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge.
1
Whether approved for reporting? Yes.
For the Appellants : Mr. N.K. Thakur, Senior
Advocate, with Mr Divya Raj
Singh, Advocate.
For the Respondents : None.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
and decree dated 29.07.2008 passed by the learned Additional
District Judge, Fast Track Court, Una, H.P. (learned First
Appellate Court), vide which the order dated 08.03.2002 passed
by the learned Senior Sub-Judge, Una (learned Executing Court),
in objections preferred under Order XXI Rules 97 and 98 of the
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Code of Civil Procedure (CPC), was set aside. (The parties shall
hereinafter be referred to in the same manner as they were arrayed
before the learned Executing Court for convenience) .
2. Briefly stated, the facts giving rise to the present
appeal are that the learned Senior Sub-Judge, Una, decreed the
suit filed by Jagannath against defendant Sarwani Devi for the
specific performance of the agreement to sell and directed her to
execute the sale deed as per the law for a consideration of
₹4,000/-. The decree holder (DH), Jagannath, filed an
application for execution of the judgment and decree, seeking a
direction to Sarwani Devi, the judgment debtor (JD), to execute
the sale deed on the payment of the remaining sale
consideration. Pritam Singh, Gian Singh, and Vikram Singh
(objectors) filed objections to the execution, taking preliminary
objections regarding lack of maintainability and cause of action.
They asserted that they are the absolute and exclusive owners in
possession of the suit land and the DH had no concern with it.
The objectors had purchased the entire suit land vide sale deeds
dated 03.06.1986 and 06.10.1986 for valuable consideration
without notice before filing of the suit and passing of the decree.
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They are not bound by the decree and the execution cannot
proceed against them.
3. The DH filed a reply asserting that the sale deeds
were executed by the JD after filing of the suit to defeat the
rights of the decree holder. Therefore, it was prayed that the
objections be dismissed.
4. The learned Trial Court framed the following issues
on 15.12.2000:
1. Whether the present petition is not maintainable?
OP Objector.
2. Whether the DH has no cause of action and locus
standi to file the execution? OP Objector.
3. Whether the decree is unexecutable and the
objector had purchased the entire suit land from
the land owners bona fide for valuable
consideration without notice prior to the filing of
the suit as alleged? OP Objector.
4. Relief.
5. The parties were called upon to produce the evidence.
The objectors examined Pritam Singh (OW-1), Gian Chand (OW-
2), Jeeta (OW-3), and Ram Chand (OW-4). The decree holder
examined Prem Lal (NOW-1), Chanan Singh (NOW-2), and
Jagannath (NOW-3).
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6. The learned Executing Court held that Jeeta, Attorney
of JD No. 1, had executed a sale deed in favour of Pritam on
06.10.1987 and delivered possession to the purchaser. Jeeta
executed a sale deed in favour of Gian Chand on 03.06.1986 for a
consideration of ₹300/- and put Gian Chand in possession. The
civil suit was filed on 03.06.1986, and an interim injunction was
granted on the same day restraining the JDs from alienating the
property. There was no evidence that the JDs or the objectors
were aware of the passing of the interim order. A part of the suit
land had been sold, and the execution could proceed regarding
the rest. Hence, the learned Trial Court answered Issue Nos. 1
and 2 in the negative, Issue No. 3 partly in the affirmative,
upheld the objections of the objectors, and ordered the
continuation of the execution regarding the rest of the suit land
after excluding 2 Kanals 17 Marlas and 5 Marlas sold to Pritam
Singh and Gian Chand.
7. Being aggrieved by the order passed by the learned
Executing Court, the legal heirs of the decree holder filed an
appeal, which was decided by the learned Additional District
Judge, Fast Track Court, Una, District Una (learned First
Appellate Court). The learned First Appellate Court held that the
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civil suit was filed on 03.06.1986 and was decreed on 03.09.1992.
Sarwani (JD No. 1) had sold part of the suit land through her son
Jeet Singh, measuring 5 Marlas, to Gian Chand on 03.06.1986
and 2 Kanals 17 Marlas to Pritam Singh vide sale deed dated
06.10.1987. A plea of bona fide purchaser for consideration is not
available to a transferee who purchases the property during the
pendency of the suit. The doctrine of lis pendens applies from the
date of presentation of the plaint till the satisfaction of the
decree. The plaint was presented on 03.06.1986, and the sale
deeds were executed during the pendency of the suit; hence,
they are hit by the doctrine of lis pendens. The learned Trial Court
erred in upholding the objectors’ claim. Hence, the order passed
by the learned Trial Court was set aside, and the learned Trial
Court was directed to execute the judgment and decree as per the
law.
8. Being aggrieved by the judgment and decree passed
by the learned Appellate Court, the objectors filed the present
appeal, which was admitted on the following substantial
questions of law on 12.09.2008:
1. Whether a decree for specific performance obtained
by respondents No.1 to 5 is binding on a bona fide
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purchaser for lawful consideration without notice
and without impleadment of such purchaser?
2. Whether the doctrine of lis-pendens as envisaged
under Section 52 of the Transfer of Property Act is
attracted to the facts of the case in the absence of
any proof/evidence as to whether the sale deed
which is executed before the suit or after the suit?
3. Whether the sale in favour of a person who is a bona
fide purchaser for value without notice is protected
under Section 19 of the Specific Relief Act and the
learned Lower Appellate Court has erred in
misconstruing the provisions of Section 19 of the
Specific Relief Act?
9. Mr N.K. Thakur, learned Senior Counsel for the
appellants/objectors, submitted that the objectors were bona fide
purchasers for consideration without any knowledge of the
pendency of the suit. The decree holder had not assailed the sale
effected by defendant No. 1/JD no.1 in favour of the objectors,
and the same could not have been set aside by the learned
Appellate Court. The learned Executing Court had rightly upheld
the objections preferred by the objectors, and the learned
Appellate Court erred in setting aside the well-reasoned
judgment passed by the learned Executing Court. Therefore, he
prayed that the present appeal be allowed, the judgment and
decree passed by the learned First Appellate Court be set aside,
and those passed by the learned Executing Court be restored. He
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relied upon the judgment of this Court in Bhagwati Devi & ors. v.
Dev Raj @ Hans Raj Sharma & anr. a/w connected matter RSA No.
384 of 2005, decided on 24.09.2019 , in support of his
submissions.
10. None appeared on behalf of the respondents when
the matter was listed for hearing; hence, none could be heard on
their behalf.
11. I have given considerable thought to the submissions
made at the Bar and have gone through the records carefully.
Substantial Question of Law No.2:
12. A sale deed (Ext. O-2) was executed by Jeeta as power
of attorney of Sarwani in favour of Pritam Singh for ₹2,500/- on
06.10.1987. Similarly, a sale deed (Ext. O-3) was executed by
Jeeta regarding 5 Marlas of land in favour of Gian Chand on
03.06.1986. The judgment and decree passed by the learned
Senior Sub-Judge, Una, mentions the date of institution of the
suit as 03.06.1986. Thus, it is incorrect to say that there is no
proof of the fact as to whether the sale deeds were executed
before the pendency of the suit or not. The dates of execution of
the sale deeds were apparent on the sale deeds themselves.
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These were also mentioned in the objections, as well as the
statement on oath by Gian Chand (OW-2) and Jeeta (OW-3).
13. Section 52 of the Transfer of Property Act provides
that the pendency of the suit shall be deemed to commence from
the date of presentation of the plaint or the institution of the
proceeding in a Court of competent jurisdiction, and will
continue until the suit or proceeding has been disposed of by a
final decree or order and complete satisfaction or discharge of
such decree or order has been obtained, or has become
unobtainable by reason of the expiration of any period of
limitation prescribed for the execution thereof.
14. It was laid down by the Hon’ble Supreme Court in
Siddamsetty Infra Projects Pvt. Ltd. v. Katta Sujatha Reddy, 2024
SCC OnLine SC 3214 that the pendency is defined to commence
from the date of institution until its disposal. The doctrine of lis
pendens kicks in at the stage of institution and not at the stage
when notice is issued by the Court. Thus, it would apply even if
the petition is defective and is lying in the Registry. It was
observed: -
61…. This purpose of the provision is clearly elucidated in
the Explanation clause to Section 52, which defines
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“pendency”. The Amending Act 20 of 1929 substituted
the word “pendency” in place of “active prosecution”.
The Amending Act also included the Explanation defining
the expression “pendency of suit or proceeding”.
“Pendency” is defined to commence from the “date of
institution” until the “disposal”. The argument of the
respondents that the doctrine of lis pendens does not
apply because the petition for review was lying in the
Registry in a defective state cannot be accepted.
62. The review proceedings were “instituted” within the
period of limitation of thirty days. The doctrine of lis
pendens kicks in at the stage of “institution” and not at
the stage when notice is issued by this Court. Thus,
Section 52 of the Transfer of Property Act would apply to
the third-party purchaser once the sale was executed
after the review petition was instituted before this Court.
Any transfer that is made during the pendency is subject
to the final result of the litigation. [ G.T. Girish v. Y. Subba
Raju, (2022) 12 SCC 321: (2023) 3 SCC (Civ) 422 ]
15. In the present case, the suit was instituted by filing a
plaint. The certified copy of the plaint mentions Box No.1 above
the date of presentation of the plaint. Volume 1, Chapter 1, Part C
of the Punjab and Haryana High Court Rules and Orders, as
applicable to the State of H.P., deal with the reception of the
plaint and application. Rule 7 provides that the petition box shall
be placed in the verandah of the Court house about one hour
before the Court sits. It shall be opened in the presence of the
Judge about 15 minutes after the Court opens, when all the
petitions shall be initialled by him. The box shall be replaced in
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the verandah and opened again before the Court rises for lunch.
It shall then again be replaced and opened for the last time 15
minutes before the time fixed for rising of the Court. After it has
been opened for the third time, it shall not be replaced in the
verandah again.
16. Therefore, Box No. 1 opens 15 minutes after the Court
sits, and the plaint was filed within one hour of the sitting of the
Court. The Court hours are from 10:00 AM to 4:00 PM, which
means that the plaint was instituted on or before 10:15 AM. The
sale deed was written, executed, and registered on 3.6.1986.
Therefore, the learned Appellate Court had rightly held that the
sale deed was executed during the pendency of the suit and was
hit by the doctrine of lis pendens . Hence, this substantial
question of law is answered accordingly.
Substantial Question of Law No. 3:
17. It was laid down by the Allahabad High Court in Ram
Peary vs. Gauri, AIR 1978 All 318 , that Section 19(b) of the Specific
Relief Act will give way to Section 52 of the Transfer of Property
Act. It was observed:
“7. In the light of these principles we have got to consider
whether in the event of a conflict arising between the
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doctrine of lis pendens enshrined in Section 52 of the
Transfer of Property Act and the rule availing a
subsequent transferee without notice, contained in
Section 19(b) of the Specific Relief Act either the one or
the other should prevail. Ordinarily, it is true that the title
acquired by the subsequent purchaser is good, the sale to
him being not void. But he who purchases during the
pendency of the suit is bound by the decree that may be
made against the person from whom he derives title. The
litigating parties are exempted from the necessity of
taking any notice of a title so acquired (see Samarendra
Nath Sinha v. Krishna Kumar Nag (AIR 1967 SC 1440 )). As to
the vendor and the prior contractor, it is as if no such title
existed. Section 52 places a complete embargo on the
transfer of any right to immovable property pending suit,
which is directly and specifically in question in such
litigation; it enacts that during the pendency of the suit in
which any right to immovable property is “directly and
specifically in question, the property cannot be
transferred or otherwise alienated by any party to the suit
so as to affect the rights of any other party thereto under
any decree.”
8. Thus, in the present case it may be that the subsequent
transferee was entirely ignorant of any right on the part
of the contractor, and also of the pendency of the suit
filed against the vendor by such contractor, yet as the
transfer was made to him by the vendor after the
institution of the suit of the contractor and, while it was
pending, the subsequent purchaser cannot set up against
the contractor any right from which his vendor is
excluded by the decree. The title of the subsequent
purchaser is good against him on the ground of breach of
covenant, but against the plaintiff contractor who seeks
specific performance of the contract against the vendor,
the subsequent transferee can be in no way better
position than the vendor himself. It is well settled that in
a suit for specific performance of a contract in respect of
immovable property a right to immovable property is
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directly and specifically in question. (see Gauri Dutt
Maharaj v. Sheikh Sukur Mohammad (75 Ind App 165) : (AIR
1948 PC 147) ).
9. As Story has put it in the passage quoted above, the
effect of the doctrine of lis pendens is not to annul the
conveyance but only to render it subservient to the rights
of the parties in the litigation. The conveyance in favour
of the subsequent purchaser is treated as if “it never had
any existence”. The conveyance in favour of the
subsequent purchaser thus yields to the adjudication of
the rights obtained by the contractor, in consequence of a
decree obtained against the vendor in a suit for specific
performance of the contract. In Durga Prasad v. Deep
Chand (AIR 1954 SC 75) (supra), their Lordships were
dealing with the form of the decree in a suit directing
specific performance of contract between the vendor and
the plaintiff and in that connection, with a view to convey
to the plaintiff, without cancelling the subsequent sale,
they, without enforcing the contract against the
subsequent purchaser, directed him to join in the
conveyance so as to pass on the title which resided in him
to the plaintiff. It was not a case falling within the
mischief of Section 52 of the Transfer of Property Act.
10. In our opinion, therefore, when the doctrine of lis
pendens renders a transfer made during the pendency of
the suit subservient to the rights of the plaintiff seeking
specific performance of a prior contract entered into by
the vendor in his favour and when on account of the
operation of the doctrine of lis pendens such conveyance
is treated as if it had never any existence, the subsequent
transferee, even though he had obtained the transfer
without notice of the original contract, cannot set up
against plaintiff-contractor any right; for it would defeat
the rule of lis pendens which is founded upon public
policy. And considered in that manner, Section 52 of the
Transfer of Property Act is not subject to Section 19(b) of
the Specific Relief Act.”
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18. The Hon’ble Supreme Court also held in Alka Shrirang
Chavan v. Hemchandra Rajaram Bhonsale, 2026 SCC OnLine SC 55
that Section 19(b) of the Specific Relief Act applies to the sale
deeds executed before the pendency of the suit and not to those
executed during the pendency of the suit. It was observed: -
46.1. The only clause which may be of some relevance is
clause (b) of Section 19. It says specific performance of a
contract may be enforced against any other person
claiming under him by a title arising subsequently to the
contract except a transferee for value who has paid his
money in good faith and without notice of the original
contract.
46.2. Section 19 in general and clause (b) thereof in
particular acknowledges the claim of a person to a
contract qua a subsequent transferee. But clause (b)
carves out an exception when a subsequent transferee
acts in good faith and without notice of the original
contract.
47. In K.S. Manjunath v. Moorasavirappa [2025 SCC OnLine
SC 2378 ], the subsequent purchasers were seeking to
bring themselves within the status of bona fide
purchasers under Section 19(b) of the Specific Relief Act.
It was in that context that this Court examined Section
19(b) as under:
68. ………Section 19 provides for the categories of
persons against whom specific performance of a
contract may be enforced. Amidst all, Clause (b) of
Section 19 states that specific performance may be
enforced against any other person claiming under
him by a title arising subsequently to the contract,
except a transferee for value who has paid his
money in good faith and without notice of the
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original contract. Thus, a transferee for value who
has paid his money in good faith and without notice
of the original contract is excluded from the
purview of the said clause. In the case of Ram Niwas
v. Bano [(2000) 6 SCC 685] , this Court had set out
three factors that a subsequent transferee must
show to fall within the excluded class: (a) he has
purchased for value the property, which is the
subject matter of the suit for specific performance;
(b) he has paid his money to the vendor in good
faith ; and (c) he had no notice of the earlier contract
for sale specific performance of which is sought to
be enforced against him. The Court observed that
“notice” can be (i) actual notice or (ii) constructive
notice , or (iii) imputed notice. As per Section 3 of
the Transfer of Property Act, 1882, a person is said
to have notice of a fact when he actually knows that
fact or when, but for wilful abstention from inquiry
or search which he ought to have made, or gross
negligence, he would have known it……..
47.1. Thereafter, this Court referred to a decision of the
Madhya Pradesh High Court and held thus:
69. Similarly, in Durg Singh v. Mahesh Singh [2004
SCC OnLine MP 9] , the Madhya Pradesh High Court
had observed that there are two factors that are
necessary for the adjudication of suit for specific
performance of the contract where the subject
matter property has been sold to a subsequent
purchaser: (i) that whether the plaintiff remained
always ready and willing to perform his part of the
contract to purchase the suit property and the
readiness and willingness should exist till the date of
the passing of the decree , and (ii) that whether
subsequent transferee was having prior knowledge of
the earlier agreement executed in favour of the
plaintiff . Both these factors need to have nexus with
the facts of each case and conduct of parties……….
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47.2. This Court analysed the expressions ‘wilful
abstention from inquiry or search’, ‘notice’ and ‘good
faith’ and concluded that to claim protection under
Section 19(b), the purchaser must show three things: (a)
purchase for value, (b) payment in good faith, and (c)
absence of notice of the earlier contract. ‘Notice’, it has
been emphasised, includes not merely actual knowledge
but also constructive and imputed knowledge.
48. However, it is evident that Section 19(b) of the
Specific Relief Act operates at a stage prior to institution
of a suit or proceeding.
49. We have already analysed Section 52 of the Transfer
of Property Act and the interpretation given thereto by
this Court. In our view, the interpretation and
understanding of clause (b) of Section 19 has to align with
the interpretation given to Section 52 of the Transfer of
Property Act, as any other interpretation would lead to an
incongruous and anomalous situation which should be
avoided.
50. As pointed out above, Section 19(b) of the Specific
Relief Act would be available to a party to a contract who
suffers a subsequent transfer of property. However, the
moment a suit or proceeding is instituted by a party to the
contract whereafter there is transfer of the suit property,
Section 19(b) of the Specific Relief Act would have to give
way to Section 52 of the Transfer of Property Act in which
event the doctrine of lis pendens would come into force.
19. Therefore, the provision of Section 19(b) of the
Specific Relief Act cannot apply to a pendente lite purchaser.
20. This Court had also held in Raj Singh vs. Maharaj Mal,
1996 (2) Civil Court Cases 326 (HP) , that the plea of bona fide
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purchaser for consideration is not available to a transferee
pendente lite . It was observed: -
17. It was contended that the transferee's objectors are
the bona fide purchasers for consideration, who had no
notice regarding the pendency of the litigation. It was laid
down by this Court in Raj Singh v. Maharaj Mai, 1996 (2)
Civil Court Cases 326 (HP) that the plea of bona fide
purchaser for consideration is not available to the
transferee under lis pendens. It was observed:—
13. Section 52 is absolutely clear that during the
pendency of the suit or proceeding, the immovable
property involved in the case directly cannot be
transferred. The contention of the learned counsel
for the petitioners is that as both the courts below
dismissed the suit and the appeal, mere pendency
of the second appeal before this Court will not
attract the provisions of Section 52 of the Act,
which I am unable to accept in view of the
explanation to Section 52.
14. Mr Chhabil Dass has placed reliance on two
decisions, namely, Simla Banking and Industrial Co.
Ltd. v. Firm Luddar Ma! Khushi Ram, AIR 1959 Punj
490 , and Kanshi Ram v. Kesho Ran Bahna, AIR 1961
Punj 299 .
15. In Simla Banking and Industrial Co. Ltd. (supra),
the Punjab High Court considered the doctrine of lis
pendens elaborately and held that this doctrine is to
invest the Court with complete control over
alienations in this respect which are pendente lite
and thus to render its judgment binding upon the
alienates, as if they were parties, notwithstanding
the hardship in individual cases.
16. In Kanshi Ram's case (supra). It was held that
Section 41 must yield to the doctrine of is pendens
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under which the title in property could be validly
transferred during the pendency of the litigation in
respect of it.
18. Hence, the objectors cannot claim to be bona fide
purchasers for consideration.
21. Therefore, the objectors cannot claim to be bona fide
purchasers for value without notice and protection under
Section 19(b) is unavailable to them. The learned Appellate Court
had rightly held so, and this substantial question of law is
answered accordingly.
Substantial Question of Law No.1:
22. It was submitted that the objectors were not parties
to the original suit; therefore, the decree cannot be enforced
against them. This submission is not acceptable. It was laid
down in Lakshmanan v. Kamal, 1958 SCC OnLine Ker, 1958 SCC
OnLine Ker 132 that there is no necessity to bring the transferee
on record and he would be bound by the judgment and decree as
if he was a party to the suit. It was observed:-
16. The effect of this section is to render void as against
the decree-holder in a suit in which any right to
immovable property was in dispute and entitle him to
ignore all transfers or other dealings with it by the
judgment-debtor from the time of the institution of the
suit till the complete satisfaction or discharge of the
decree which would affect the decree-holder's rights
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under the decree or any order made in the suit. The
explanation specifically enjoins that the prohibition
against transfers or dealings is to take effect from the
date of the presentation of the plaint or the institution of
the proceedings in a court of competent jurisdiction and
remain in force until complete satisfaction or discharge
of the decree has been obtained or has become
unobtainable by reason of the expiration of any period of
limitation prescribed by law.
17. If a transfer or other dealing with a suit property
pendente lite is void as against the decree-holder and he is
entitled to ignore it and it cannot affect his rights under
the decree, no purpose will be served by bringing on
record, after the transfer, the transferee or the person in
whose favour the property has been dealt with; and to
insist that a transferee or the person in whose favour the
property has been dealt with should be brought on record
in such cases would only be to hold out a premium to
persons who desire to escape from their legal obligations
and unnecessarily protract legal proceedings, and would
defeat the very purpose for which section 52 of the
Transfer of Property Act has been enacted.
18. Regarding the necessity and justification for the rule
of lis pendens, Turner, L.J., has observed in Bellamy v.
Sabine, (1857) 1/De C. & J. 566 :
“It is, as I think, a doctrine common to the Courts
both of Law and Equity, and rests, as I apprehend,
upon this foundation—that it would plainly be
impossible that any action or suit could be brought
to a successful termination, if alienations pendente
lite were permitted to prevail. The plaintiff would be
liable in every case to be defeated by the
defendant's alienating before the judgment or
decree, and would be driven to commence his
proceedings de novo , subject again to be defeated by
the same course of proceeding.”
19. Lord Cranworth also has said in the same case:
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“It is scarcely correct to speak of lis pendens as
affecting a purchaser through the doctrine of
notice, though undoubtedly the language of the
Courts often so describes its operation. It affects
him not because it amounts to notice, but because
the law does not allow litigant parties to give to
others, pending the litigation, rights to the
property in dispute, so as to prejudice the opposite
party”.
(See passages from Their Lordships' judgment extracted
at page 224 of Mulla's Transfer of Property Act , 1956
Edition). The explanation to section 52, Transfer of
Property Act, is wide enough to include all transfers and
dealings with the property made during the pendency of
the suit in the trial and appellate courts as well as during
the execution proceedings.
20. There is a case reported in I.L.R. 37 Bombay 427, Ishwar
Lingo v. Dattu Gopal , almost parallel to the present case.
But for the fact that in the Bombay case, the suit was for
the redemption of four joint mortgages and in the present
case, the suit was for the redemption of a kanom, there is
practically no difference between the two cases. There, as
in the present case, the suit was originally brought
against a joint family, and there was a partition in that
family during the pendency of the suit. The co-parcener
who obtained the family partition of the property
involved in 37 Bom. 427 died during the course of the suit,
and on his death, his right to the property devolved on his
widow as his heir. But she was not impleaded in the suit
after his death, and after the decree, she came forward
and contended that the decree obtained without
impleading her was invalid and not binding on her and
the properties she got by virtue of the partition and her
husband's death. The following passages from the
judgment in that case disposing of her contentions are
very relevant for the purpose of this case:
“…….Thus regarded, it is at once clear that if,
indeed, the plaintiff was under any obligation to
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bring Gopal's widow on the record, that could only
have been because of the partition. And as ex
hypothesi , that partition, being effected during the
active prosecution of a contentious suit, was void
against the plaintiff; it could not have cast any such
obligation upon him. In using those words we do
not lose sight of the learned Judge's view, that
although a transfer or dealing with the property in
suit pendente lite , it was not dealing which in any
way affected the plaintiff's right. We are rather
indicating why, in our opinion, that view is
incorrect. For anything which imposes a new
obligation upon a party to a suit must plainly pro
tanto affect his right……..It is surely part of any
litigant's right, so far as the subject matter and
conduct of the suit are concerned, to know precisely
where he stands. He is entitled to know who his
opponents are, and, when that has been definitely
and finally ascertained, to insist that no dealing on
their part, with the property in suit, shall compel
him to go further afield, and bring in new parties,
who, but for such dealing, could have had no locus
standi at all……..
Perhaps the simplest and most effective test is to ask
whether, if the partition had not been made pendente lite ,
the plaintiff's suit could possibly have ended as it has?
The answer to this must be — No. If there had been no
partition, the widow would have had no locus standi when
she intervened in execution. This suit would never have
needed to be brought. All his troubles during the last
seven years in prosecuting his redemption suit have been
brought on the plaintiff by this partition and by nothing
else. Or to put it in another way, either the partition has
affected the plaintiff's rights as a party, or it has not. If it
has, it is admittedly void as against him, under section 52.
If it has not, it ought to be ignored, and no considerations
drawn from it ought to have any place in the decision of
the suit. Taking the latter course, what is the result? This,
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that no Court should have treated the defendant in this
suit as having any right whatever against the plaintiff, so
far as his suit for redemption went. For it is only on the
strength of the partition that she can pretend to any such
right, and, ex hypothesi , the partition does not affect the
plaintiff for all the purposes of that suit. Thus, the same
result is easily and immediately reached either way. It
would be easy to add further illustrative considerations.
But we think that what we have said warrants us in
believing that we have indicated the correct lines of
reasoning to be followed in cases of the kind. Applied to
the facts of this case, those lines of reasoning yield a very
safe conclusion. We have no doubt at all but that the
partition of January 10th, 1902, falls within the mischief
of section 52, Transfer of Property Act, and cannot be
allowed in any way to affect the plaintiff's right, either
under his redemption decree or in execution. That being
so, and the partition with all its legal consequences out of
the way, it necessarily follows that the defendant in this
suit has no right nor any ground of defence at all”.
21. We have quoted the above passage in extenso because
it gives an answer to the respondents' contention that
section 52 of the Transfer of Property Act only enjoins
that the transfer or dealing with the property shall not
affect the decree-holder's rights under the decree and
does not obviate the necessity to implead the transferee
or the person in whose favour the property has been dealt
with after the transfer. The decree-holder's right under
the decree is not merely to get the property after paying
the mortgage money—that right existed even before the
decree and the decree merely enforces that right—but
also to get possession of the property from the
defendants against whom he had brought a properly
constituted suit. The defendants cannot be allowed to
defeat that right and cast a burden upon the plaintiff to
change the frame of his suit and bring in other persons on
record by transferring or dealing with the property
pendente lite . It would be extremely difficult, if not
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altogether impossible, to have a final adjudication if, after
each successive transfer of the suit property or dealing
with it by the defendants, the plaintiff has to implead the
persons obtaining rights under the transfer or dealing or
file a fresh suit against them. He will then have to implead
more and more persons in successive and unending
stages determined at the sweet will and pleasure of the
persons interested in delaying the suit. The effect of the
rule of lis pendens , which has been enacted by section 52
of the Transfer of Property Act to get over this difficulty,
is that the transferee pendente lite is bound by the
proceedings in the suit and the decree therein even
though he is not a party to the suit. He takes the transfer
subject to the result of the suit to which the original
transferor is a party. As pointed out in Seithappa Gowndan
v. Muthiah Gowndan (I.L.R. 31 Mad. 268) :
“The law of lis pendens in this country is founded on
the necessity, if possible, of a final adjudication”
22. and to prevent the injustice of the plaintiff being
prejudiced by any act of the defendant subsequent to the
institution of the suit.
23. For the reasons stated above, we hold that in a suit or
proceeding in which any right to immovable property is
directly and specifically in question (which would include
the right to recover property) brought against the
manager of a Hindu joint family or the karnavan of a
marumakkathayamtarwad in his representative capacity,
which is not collusive, the plaintiff, or the decree-holder
in the execution proceedings, is not bound to implead
either in the suit or in the execution proceedings any
person to whom the suit property has been allotted under
a partition effected subsequent to the institution of the
suit and that all proceedings in such a suit, whether on
the trial, appellate, or execution side, would be binding on
all the members of the tarwad or joint family including
the persons who had obtained title to any part of the suit
property under the subsequent partition, if they are valid
and binding against the original defendant and the
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persons whom the plaintiff or decree-holder was bound
to implead on the death of such defendant. It will, of
course, be open to the persons who have obtained rights
to the suit properties by the subsequent partition to apply
to get themselves impleaded in the suit or execution
proceedings to protect their legitimate rights, if any, and
courts have the power to implead them on their
applications if their presence in the party array is
necessary in the interests of justice. But the plaintiff and
the decree-holder are not bound to implead them, and no
proceeding can be held to be invalid merely because the
plaintiff and the decree-holder have omitted to implead
them. We, therefore, hold that the decree-holders were
not bound to implead the petitioners in I.A. Nos. 1193,
1194, 1195 and 1196 of 1955 and that the deliveries of the
properties complained of in those petitions cannot be set
aside on the ground that the decree-holders had failed to
implead them.
23. The Hon’ble Supreme Court held in Samarendra Nath
Sinha v. Krishna Kumar Nag, AIR 1967 SC 1440, that a purchaser
pendente lite is bound by the result of the litigation. It was
observed:
16. What then is the position of the respondent once it is
held that the final decree for foreclosure was validly
passed by the trial court? Could he challenge that decree
in an appeal against it in the High Court on the basis that
he was entitled to redeem the said mortgage? Section 91
of the Transfer of Property Act provides that besides the
mortgagor, any person other than the mortgagee who has
any interest in or charge upon the property mortgaged or
in or upon the right to redeem the same may redeem or
institute a suit for redemption of such mortgaged
property. An execution purchaser therefore of the whole
or part of the equity of redemption has the right to
redeem the mortgaged property. Such a right is based on
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the principle that he steps in the shoes of his
predecessor-in-title and has therefore the same rights
which his predecessor-in-title had before the purchase.
Under Section 59-A of the Act, also all persons who derive
title from the mortgagor are included in the term
“mortgagor” and therefore entitled to redeem. But under
Section 52, which incorporates the doctrine of lis pendens ,
during the pendency of a suit in which any right to an
immovable property is directly and specifically in
question, such a 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. Under the Explanation to
that section, the pendency of such a suit commences from
the date of its institution and continues until it is
disposed of by a final decree or order and complete
satisfaction or discharge of such a decree or order has
been obtained. The purchaser pendente lite under this
doctrine is bound by the result of the litigation on the
principle that since the result must bind the party to it, so
must it bind the person deriving his right, title and
interest from or through him. This principle is well
illustrated in Radhamadhub Holdar v. Monohar [15 IA 97],
where the facts were almost similar to those in the
instant case. It is true that Section 52, strictly speaking,
does not apply to involuntary alienations such as court
sales, but it is well-established that the principle of lis
pendens applies to such alienations. (See Nilkant v. Suresh
Chandra [12 IA 171] and Motilal v. Karrabuldin [24 IA 170] ).
It follows that the respondent, having purchased from the
said Hazra while the appeal by the said Hazra against the
said preliminary decree was pending in the High Court,
the doctrine of lis pendens must apply to his purchase,
and as aforesaid he was bound by the result of that suit. In
the view we have taken that the final foreclosure decree
was competently passed by the trial court, his right to
equity of redemption was extinguished by that decree and
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he had therefore no longer any right to redeem the said
mortgage. His appeal against the said final decree was
misconceived, and the High Court was in error in allowing
it and in passing the said order of remand directing the
trial court to reopen the question of redemption and to
allow the respondent to participate in proceedings to
amend the said preliminary decree .
24. Similarly, it was held in Sukhdeo Prasad v. Jamna, ILR
(1901) 23 All 60 , that the transferee cannot challenge the decree
on the ground that they were not parties to the litigation. It was
observed at page 65: -
It was further contended on behalf of the appellants that
as they were not parties to the appeal which ended in a
declaration of the plaintiff's right, they are entitled in this
suit to have the validity of the plaintiff's title to the
property re-tried as against them. In my opinion, this is
not so. The auction purchaser might have applied to have
himself brought on the record as a defendant whilst the
case was under appeal (sections 372 and 582 of the Code
of Civil Procedure), but he did not choose to do so. To hold
that he is entitled, owing to his purchase during the
pendency of the appeal, to put the plaintiff again to proof
of her title would be entirely opposed to the doctrine of lis
pendens which applies to this case.
This may seem to bear somewhat hard on purchasers at
sales in the execution of decrees, but it is only the
application of the principle “ caveat emptor .” The court
sells such rights and interests as a judgment-debtor has
in the property exposed for sale: it does not guarantee
that he has any. If those rights and interests are nil, a
purchaser, however complete may be his bonâ fides ,
acquires nothing. If it turns out that the judgment-debtor
had no saleable interest in the property which purported
to be sold as his, the purchaser is not entitled to retain the
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property on the ground that he bought it at a sale held
under the orders of the Court. He is only entitled to
receive back his purchase money from any person to
whom the purchase money has been paid vide section 315
of the Code of Civil Procedure.
In the last ground of appeal, it is urged that Jawahir Lal,
being a bonâ fide transferee from the auction-purchaser,
and having been allowed by the plaintiff to spend a large
sum of money on the property in dispute, is entitled to
the benefit of section 41 of the Transfer of Property Act,
and to have a suit as against him dismissed. I do not think
this plea can succeed, as it is difficult to see how it can be
held that the auction-purchaser was in possession of the
property with the plaintiff's consent.
25. Therefore, the plea taken by the objectors that they
or their predecessor were not parties, and the decree cannot be
executed against them, is not acceptable
26. The objectors had filed petitions under Order XXI
Rule 97 to 98 of the Code of Civil Procedure. However, Order XXI
Rule 102 specifically provides that Rules 98 and 100 do not apply
to a person to whom the judgment debtor had transferred the
property after the institution of the suit.
27. It was laid down by the Hon’ble Supreme Court in
Usha Sinha v. Dina Ram, (2008) 7 SCC 144 that a transferee from a
judgment debtor is presumed to be aware of the proceedings,
and he should be careful before he purchases the property. It was
observed:-
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17. Rule 102 clarifies that Rules 98 and 100 of Order 21 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 the 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.”
A bare reading of the Rule makes it clear that it is based on
justice, equity and good conscience. A transferee from a
judgment-debtor is presumed to be aware of the
proceedings before a court of law. He should be careful
before he purchases the property which is the subject matter
of litigation. It recognises the doctrine of lis pendens
recognised by Section 52 of the Transfer of Property Act,
1882 [ “52. Transfer of property pending suit relating
thereto.—During the pendency in any court having
authority within the limits of India excluding the State of
Jammu and Kashmir or established beyond such limits by
the Central Government 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. Explanation.—For the purposes of
this section, the pendency of a suit or proceeding shall be
deemed to commence from the date of the presentation of
the plaint or the institution of the proceeding in a court of
competent jurisdiction, and to continue until the suit or
proceeding has been disposed of by a final decree or order
and complete satisfaction or discharge of such decree or
order has been obtained, or has become unobtainable by
reason of the expiration of any period of limitation
prescribed for the execution thereof by any law for the time
being in force.”] . Rule 102 of Order 21 of the Code thus takes
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into account the ground reality and refuses to extend a
helping hand to purchasers of property in respect of which
litigation is pending. If unfair, inequitable or undeserved
protection is afforded to a transferee pendente lite, a
decree-holder will never be able to realise the fruits of his
decree. Every time the decree-holder seeks a direction from
a court to execute the decree, the judgment-debtor or his
transferee will transfer the property and the new transferee
will offer resistance or cause obstruction. To avoid such a
situation, the Rule has been enacted.
18. Before one-and-half century, in Bellamy v. Sabine [(1857)
1 De G & J 566: 44 ER 842] , Lord Cranworth, L.C. proclaimed
that where litigation is pending between a plaintiff and a
defendant as to the right to a particular estate, the
necessities of mankind require that the decision of the court
in the suit shall be binding not only on the litigating parties,
but also on those who derive title under them by alienations
made pending the suit, whether such alienees had or had
not notice of the pending proceedings. If this were not so,
there could be no certainty that the litigation would ever
come to an end.
19. Keeping in view the avowed object, the expression
“transferee from the judgment-debtor” has been
interpreted to mean the “transferee from a transferee from
the judgment-debtor” (vide Vijayalakshmi Leather Industries
(P) Ltd. v. K. Narayanan [AIR 2003 Mad 203 ] ).
20. In Vijayalakshmi Leather Industries [AIR 2003 Mad 203] it
was urged that the provisions of Rules 98 and 100 of Order
21 of the Code had limited application to the transferee of
the judgment-debtor and could not extend to “a chain of
transactions” where the transferee of the judgment-debtor
had transferred his interest.
21. Referring to statutory provisions and case law, the Court
negatived the contention, stating : ( Vijayalakshmi case [AIR
2003 Mad 203 ], AIR p. 206, para 13)
“ 13 . 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 that while interpreting the provisions of the
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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 CPC,
it is very clear that the intention of 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 property
which is the subject matter of the litigation or put any
third party in possession and keep it away from the
court. By such actions of the party to the litigation,
the other party will be put to more hardship, and only
to avoid such prejudicial acts by a party to the
litigation are these provisions in existence. When,
despite such statutory restrictions, for the transfer of
the properties, which are the subject matter of
litigation by a party to the proceeding, the courts are
duty-bound to give effect to the provisions of the
statute.”
22. The above observations, in our opinion, lay down the
correct proposition of law.
23. It is thus settled law that a purchaser of suit property
during the pendency of litigation has no right to resist or
obstruct the execution of the decree passed by a competent
court. The doctrine of “lis pendens” prohibits a party from
dealing with the property which is the subject matter of the
suit. “Lis pendens” itself is treated as constructive notice to
a purchaser that he is bound by a decree to be entered in the
pending suit. Rule 102, therefore, clarifies that there should
not be resistance or obstruction by a transferee pendente
lite. It declares that if resistance is caused or obstruction is
offered by a transferee pendente lite of the judgment-
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debtor, he cannot seek the benefit of Rules 98 or 100 of
Order 21.
24. In Silverline Forum (P) Ltd. v. Rajiv Trust [(1998) 3 SCC
723] , this Court held that where the resistance is caused,
or obstruction is offered by a transferee pendente lite, the
scope of adjudication is confined to a question of whether
he was a transferee during the pendency of a suit in which
the decree was passed. Once the finding is in the
affirmative, the executing court must hold that he had no
right to resist or obstruct, and such a person cannot seek
protection from the executing court. The Court stated :
(SCC pp. 727-28, para 10)
“ 10 . It is true that Rule 99 of Order 21 is not
available to any person until he is dispossessed of
immovable property by the decree-holder. Rule 101
stipulates that all questions ‘arising between the
parties to a proceeding on an application under
Rule 97 or Rule 99’ shall be determined by the
executing court if such questions are ‘relevant to
the adjudication of the application’. A third party to
the decree who offers resistance would thus fall
within the ambit of Rule 101 if adjudication is
warranted as a consequence of the resistance or
obstruction made by him to the execution of the
decree. No doubt if the resistance was made by a
transferee pendente lite of the judgment-debtor,
the scope of the adjudication would be shrunk to
the limited question of 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. 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 ] .)
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25. We are in respectful agreement with the proposition
of law laid down by this Court in Silverline Forum [(1998) 3
SCC 723]
. In our opinion, the doctrine is based on the
principle that the person purchasing a property from the
judgment-debtor during the pendency of the suit has no
independent right to property to resist, obstruct or object
to the execution of a decree. Resistance at the instance of
the 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.
26. For invoking Rule 102, it is enough for the decree-
holder to show that the person resisting the possession or
offering obstruction is claiming his title to the property
after the institution of the suit in which the decree was
passed and sought to be executed against the judgment-
debtor. If the said condition is fulfilled, the case falls
within the mischief of Rule 102 and such applicant cannot
place reliance either on Rule 98 or Rule 100 of Order 21.
28. A similar view was taken in Tahir V. Isani v. Madan
Waman Chodankar, 2025 SCC OnLine SC 1962 , wherein it was
observed:-
Therefore, it is absolutely clear that the transferee of a
judgment-debtor who traces his title to the immovable
property, that is the subject matter of a pending suit, is
not entitled to seek the remedy available under Rules 97
to 102 of Order XXI. At the cost of repetition, we state that
the whole scheme of Rule 102 of Order XXI read with
Section 52, Transfer of Property Act, 1882 is to protect the
interest of a decree-holder who has successfully attained
a decree of possession of an immovable property.
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29. This position was reiterated in R. Savithri Naidu v.
Cotton Corpn. of India Ltd., 2026 SCC OnLine SC 198 , wherein it
was observed: -
13. It is a well-worn proverb in litigation, echoing the
Privy Council's century-old observation, that the true
difficulties of a litigant begin only after they have
obtained a decree. General Manager of the Raj Durbhunga v.
Coomar Ramaput Singh, (1871-72) 14 Moo IA 605; 1872 SCC
OnLine PC 16 . It is generally stated that a suit may take 5
years to conclude, but its execution takes 10 years. Order
XXI of the CPC was comprehensively amended in 1976
specifically to cure this mischief, operating as a self-
contained code that strictly bars separate suits (under
Section 47, Rule 92(3), and Rule 101) and imposes rigid
limitation periods for raising objections. If the argument
of the appellant is accepted, allowing pendente lite
purchasers or third parties to bypass these strict
procedural safeguards and institute separate suits or raise
belated objections long after the execution processes (like
attachment and sale) have advanced, it would completely
derail the statutory machinery. Judgment-debtors would
be incentivised to systematically defeat decrees by
transferring properties or planting surrogate objectors to
initiate endless collateral litigation. Consequently,
execution proceedings would not merely take 10 years,
but would get trapped in an infinite loop and practically
never get completed, reducing the hard-won decrees of
competent courts to mere “paper tigers.”
13.1 This Court emphasised in Jini Dhanrajgir v. Shibu
Mathew (2023) 20 SCC 76 that winning a case is
meaningless unless the winner actually gets the relief
they sought. We need a shift in mindset: the goal of the
legal system should not just be to dispose of cases, but to
ensure that the litigant enjoys the reliefs. The provisions
in the CPC must be employed to secure actual relief, not
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just a formal decree. We must ensure that the legal
process results in justice not just appearing to be done,
but justice actually being done.
30. It was submitted that the decree for specific
performance could not have been passed without setting aside
the sale deed executed in favour of the objector. This submission
is not acceptable. It was held by this Court in Rajinder Singh v.
Sushil Kumar, 2006 SCC OnLine HP 14 that specific performance
of a contract can be enforced against a transferee pendente lite
even without seeking a declaration regarding the invalidity of
the sale deed. It was observed:
4. I have heard the learned counsel for the appellant. The
main contention raised by the learned counsel is that no
prayer having been made by the plaintiffs for the
cancellation of the sale deed made by Nand Lal in favour
of the appellant, the suit could not have been decreed
against the present appellant. The matter has been dealt
with by the First Appellate Court. Section 19(a)(b) of the
Specific Relief Act, 1963 says that specific performance of
a contract may be enforced against either party thereto or
any other person claiming under him by a title arising
subsequently to the contract, except a transferee for value
who has paid his money in good faith and without notice
of the original contract. The aforesaid provision is clear.
The present appellant, being a transferee subsequent to
the making of the agreement by Nand Lal with the
plaintiffs, decree for specific performance is executable
against him even without seeking the cancellation of the
sale made in his favour by Nand Lal.
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31. It was laid down in Shingara Singh v. Daljit Singh,
2024 SCC OnLine SC 2823, that transactions hit by the doctrine of
lis pendens are illegal. It was observed:
14. In a recent judgment of this Court in Chander Bhan (D)
through Lr. Sher Singh v. Mukhtiar Singh, 2024 INSC 377 , it
is observed, “once it has been held that the transactions
executed by the respondents are illegal due to the
doctrine of lis pendens, the defence of the respondents 1 -
2 that they are bona fide purchasers for valuable
consideration and thus, entitled to protection under
Section 41 of the Transfer of Property Act, 1882 is liable to
be rejected.”
32. In Bhagwati Devi (supra) , this Court was dealing with
a suit for specific performance in a regular second appeal. The
Court held that the plaintiff had not sought a declaration
regarding the invalidity of the decree and he was not entitled to
specific performance. The judgment does not show that the sale
deed was executed during the pendency of the suit. The benefit
of Section 19 (b) of the Specific Relief Act is available to a person
who had purchased the property before the institution of the
suit; therefore, the cited judgment does not apply to the present
case.
33. It was laid down by the Hon’ble Supreme Court in
Shingara Singh (supra) that any person purchasing the property
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during the pendency of the suit would be bound by the decree.
Therefore, the learned Appellate Court had rightly held that
specific performance could be granted against the objectors, and
this substantial question of law is answered accordingly.
Final order:
34. In view of the above, the present appeal fails, and it is
dismissed.
35. Pending application(s), if any, also stand(s) disposed
of.
36. Records of the learned Courts below be sent down
forthwith.
(Rakesh Kainthla)
Judge
th
29 October, 2026
(Chander)
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