Kashinath Ramji Shinde Died Through Lrs Sumanbai Kashinath Shinde And Others vs Pradip Madhavrao Shinde And Others

2026:BHC-AUG:16901
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wp-12195-2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.12195 OF 2024
1. Kashinath Ramji Shinde (Died Through LRs.)
1a. Sumanbai w/o. Kashinath Shinde,
Age : 56 Years, Occ. Household,
1b. Suresh s/o. Kashinath Shinde,
Age : 55 Years, Occ. Painter,
1c. Ramesh Kashinath Shinde,
Age : 56 Years, Occ. Medical Practitioner,
All r/o. Shambhu Nagar,
Gadiya Vihar, Aurangabad
..Petitioners
Vs.
1. Pradip s/o. Madhavrao Shinde,
Age : 57 Years, Occ. Nil,
r/o. Block No.14, jai Mauli Co-operative
Housing Society, M. Sector, N6,
CIDCO, Aurangabad
2. Smt. Kusumbai w/o. Jagannath Shinde,
Age : 65 Years, Occ. Service,
r/o. Govt. Quarters, Labour Colony,
Aurangabad
3. Municipal Corporation, Aurangabad
Through its Administrator/Deputy
Commissioner, Aurangabad
4. City Survey Officer,
City Survey Office,
Near Municipal Corporation,
Aurangabad

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5. Shantilal Dagaduram Muthiyan,
Age : 89 Years, Occ. Business,
r/o. 5-1-33/p Samta Nagar,
(Rambhapura), Aurangabad
6. Chandrakant Sriram Patil,
Age : 61 Years,
r/o. Ramandu,
Plot No.14, Maya Nagar,
Near Deogiri Co-operative Bank,
N2, CIDCO, Mukundwadi,
Aurangabad
7. Dr. Ashok B. Lohalekar,
Age : Adult, Occu. Doctor,
r/o. Nutan Colony, Aurangabad ..Respondents
----
Mr. R.F.Totala, Advocate h/f. Mr.V.S.Kabra i/b. Mr.Swapnil Lohiya,
Advocate for petitioners
Mr. P.V.Mandlik, Senior Advocate i/b. Mr.P.P.Mandlik, Advocate for
respondent no.7
----
CORAM : AJIT B. KADETHANKAR, J.
th
RESERVED ON : 27 March, 2026
th
PRONOUNCED ON : 20 April, 2026

JUDGMENT :-

Rule. Rule made returnable forthwith. At the instance of
learned counsel for the parties, the Writ Petition is heard for final
disposal. Parties submit that their pleadings are already complete
and they do not want to file on record any additional pleadings.

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2. Preface:
2.1 Feeling aggrieved by an order dated 19.08.2024 passed
by the learned Civil Judge, Senior Division (Corporation Court),
Aurangabad, rejecting petitioner’s application filed below Exh.145-D
in Regular Darkhast No.08 of 2013, the Petitioner/Decree-Holder is
before this Court.
2.2 After a long Court battle initiated in 1987, the Petitioner
succeeded in 2011 to get a Decree for Possession, Declaration and
Mesne Profit in his Suit. In 2013, the Petitioner/Decree holder lodged
proceedings under Order 21 Rule 35 of the Code of Civil Procedure
1908 [‘C.P. Code of 1908’ for the sake of brevity] for possession of
the decretal property. In the execution proceedings, the petitioner’s
application seeking directions against the Respondent No. 7 - a
purchaser pendente lite for possession came to be turned down by
the Executing Court. Notably, the Petitioner had once added name of
Respondent No. 7 in the Suit and later deleted him under Order 1
Rule 10 of the C.P. Code of 1908.
Petitioner’s case is that the Respondent No.7 being a
purchaser pendente lite u/s 52 of the Transfer of Property Act 1882,
falls within the meaning of ‘any person bound by Decree’ as

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provided in Order 23 Rule 35 of the C.P. Code of 1908. Per contra,
Respondent No.7’s case is that once he was deleted in the suit, the
Decree holder Petitioner lost every claim against him.
2.3 As such, conundrum in the case in hand is, if a purchaser
pendente lite who was once added and later deleted in the suit U/o 1
Rule 10 of the C.P.C.1908, is immune from applicability of Order 21
Rule 35 of the C.P.C.1908.
3. Facts in brief :
Facts are almost undisputed, and can be sequentially
narrated as below: -
3.1 The petitioner purchased a residential property vide a
registered sale deed from its predecessor owner on 06-09-1976.
Dispute arose as the Respondent Nos. 1 and 2 entered their names
in the city survey record of the 'subject-matter property' and
obtained construction permission from the Municipal Corporation.
The Respondent Nos.1 and 2 even sold portions of the 'subject-
matter property' to the Respondent Nos. 5 and others (defendants
Nos. 5 to 10).

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3.2 The Petitioner was constrained to file Regular Civil Suit
No.435 of 1987 in the court of the learned Civil Judge (S.D.)
Aurangabad in respect of municipal property no. 5-17-33/PART
situated at Mohalla Samatanagar at Aurangabad (‘Suit
property/Decretal property’ for the sake of brevity). The record
reveals that the Suit was once renumbered as Special Civil Suit No.
277 of 1998, and then again renumbered as Regular Civil Suit
No.777 of 2002.
In the course of time, the Suit for injunction was
amended with prayers for Declaration, Possession and Mesne profit.
Construction permission granted by the then Municipal Corporation
and the conveyance deeds executed by the Respondent Nos. 1 and 2
in favour of Respondent No. 5 and others were also under challenge.
The Respondent Nos. 1 and 2, on the other hand filed
Regular Civil Suit no. 413 of 1987 seeking injunction against the
Petitioner.
3.3 During pendency of the Suit, the Respondent Nos.1 and
2 also sold a portion of the 'Suit property’ to the Respondent No.7.
Consequently, the Respondent No. 7 was added in Petitioner’s suit as
Defendant No.11 at the fag end of the Trial. The evidence part was

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over. Petitioner was cross-examined by the Respondent No. 2, from
whom the Respondent No.7 has claimed interest in the Suit property.
3.4 During the Trial, an application was filed by the
Respondent No.7 (Defendant no. 11) seeking permission to cross-
examine the petitioner/plaintiff. It was objected by the Petitioner
citing the reason that the subsequent purchaser can not re-open
cross examination of the plaintiff. However, after hearing the parties
the Trial Court allowed the application vide order dated 27.01.2005.
3.5 The petitioner challenged the order dated 27.01.2005 in
this Court vide Writ Petition No. 1653 of 2005. The Petitioner
submitted that the defendant no. 11 is purchaser pendente lite .
That, the Defendant no. 11 was trying to prolong the Suit and
permitting him to cross-examine the plaintiff would amount to de-
novo Trial. This Court vide order dated 30.03.2005 allowed the
petitioner to withdraw the Writ Petition with liberty to file an
application before the Trial Court to delete the name of Defendant
No.11 from the array of Defendants. Directions were given to the
Trial Court to decide Petitioner’s application on merits.

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3.6 The petitioner accordingly filed an application at Exh.236
before the Trial Court seeking leave to delete the Defendant no.11
from the array of the Defendants. The application was contested by
the Defendant no. 11. On 28.09.2005, the Trial Court allowed the
application, however observing that the application was treated as
‘withdrawal of suit’ against the Defendant no.11. Hence it was held
that the suit stood ‘withdrawn’ as against the Defendant no. 11.
3.7 The Petitioner sought review of the order dated
28.09.2005. However, the Review application i.e. M.A.R.J.I. No. 205 of
2006 came to be rejected.
The Petitioner challenged the orders passed on
application under Order 1 Rule 10 of C.P. Code 1908 and the order
passed in Review application M.A.R.J.I. No. 205 of 2006 before this
Court vide Writ Petition no. 8020 of 2006.
3.8 Vide order dated 09.01.2007 this Court quashed and set
aside both the orders under challenge (supra) and directed the Trial
Court to re-consider the petitioner’s application for deletion of the
Defendant No.11 under Order 1 Rule 10 of C.P. Code of 1908 on
merits within a time-frame. This Court observed that the Trial Court
could not have gone beyond the pleading in the application and
Order 1 Rule 10 of the C.P. Code of 1908.

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3.9 The application Exh.236 was re-heard by the Trial Court.
Vide order dated 24.09.2007, the Trial Court then allowed the
application and permitted the Petitioner ‘to delete’ the name of the
Defendant No. 11 in the Suit. Accordingly, the Petitioner amended
the title clause of the Suit. Name of the Defendant No. 11 (R.No.7)
came to be deleted in the Suit.
3.10 At the conclusion of the Trial, the suit filed by the
Petitioner as also the Suit filed by the Respondent No.2 were
dismissed by the Trial Court on merits vide a common Judgment and
Decree dated 27.10.2009. The Petitioner challenged dismissal of his
Suit vide Regular Civil Appeal No. 169 of 2011. The District Court,
Aurangabad, allowed Petitioner’s Appeal and reversed the findings of
the Trial Court. The petitioner’s Suit came to be decreed vide
Judgment and decree dated 02.01.2013. The Decree in favour of the
Petitioner is intact even today. Dismissal of the suit filed by
Respondent nos. 1 and 2 also remains intact.
3.11 Consequent to the Decree in his favor, the petitioner
instituted an Execution Proceeding before the Corporation Court,
Aurangabad bearing Regular Darkhast No. 08 of 2013 .

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3.12 In the Execution Proceeding, the other Judgment
Debtors - subsequent purchasers accepted the decree. As such, vide
order dated 16.11.2019, Regular Darkhast was withdrawn against
such Judgment Debtors who were claiming right through the
Respondent no.2.
3.13 At this juncture, the Petitioner filed present application at
Exh. 145/D praying directions against the present Respondent No.
7 (i.e. the deleted Defendant No. 11) for handing over possession of
the portion of the 'Decretal property' which the Respondent No.7
purchased during pendency of the Suit.
3.14 Respondent No. 7 appeared before the executing court
and objected the application exhaustively. He submitted that the
decree is not passed against him and no directions could be issued
to him. He pointed out that his name was deleted in the suit at the
behest of the plaintiff. That, he was not made party in the appeal.
That, in those circumstances, decree can not be executed against
him who is a third party. The Respondent No. 7 thus prayed to reject
the application. The petitioner countered the reply by filing affidavit-
in- rejoinder.

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3.15 Upon hearing the parties, the Executing Court was
pleased to reject Petitioner’s application vide impugned order dated
19.08.2024. The Executing Court observed at paragraph No. 5 of the
impugned order :
“5. In the aforesaid circumstances of the case, it is
necessary to consider the provisions of Order 21 Rule
35 of the Civil Procedure Code which provides for
execution of Decree for the delivery of immovable
property. It is to be noted that, the possession of such
property is required to be delivered to the party to
whom it has been adjust and for this purpose the
Court may remove any person bound by the Decree
who refuses to vacate the property . In the present
case the part of the property which is to be delivered
is in possession of third party who refuses to vacate
it. However, in the light of deletion of his name by
treating said application for withdrawal of Suit he can
not be said to be a person bound by the Decree
within the meaning of Order 21 rule 35 of Civil
Procedure Code. Therefore, no direction as sought by
D.H. can be given. Hence I pass following order.
ORDER
Application stands rejected.”
3.16 It is against the impugned order, the Petitioner/Decree
Holder plaintiff is before this Court.

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4. Submissions :-
4.1 Mr. Rameshwar Totla, learned Counsel for the Petitioner
raises his punctilious objection to the impugned order that, the
Petitioner has ‘deleted’ name of the Respondent No. 7 in the Suit.
That, it does not mean that the Petitioner abandoned claim/right
against Respondent No. 7 within the meaning of Order 23 (1) of the
Civil Procedure Code 1908. He would point out under which
circumstances and for what reasons the Respondent No. 7 was
added in the Suit and was later deleted. Mr. Totla submits that the
Respondent No. 7 was arrayed as Defendant, being a purchaser
Pendente Lite . Since the Respondent No. 7 was prolonging the suit
by seeking re-opening of the plaintiff’s evidence, he was deleted in
the suit. He submits that Respondent No.7 is claiming his right
through the Respondent No.2.
4.2 He would submit that Section 52 of the Transfer of
Property Act read with Section 146 of the C.P. Code 1908 protects
the petitioner’s interest and right against the Respondent No.7.
That, deletion of the Respondent No.7 in the Suit, does not disentitle
the Decree holder from seeking execution against the Respondent
No.7.

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4.3 Mr.Totla further submits that the Respondent No. 7 is
‘bound by the Decree’ within the meaning of Order 21 Rule 35 of the
C.P. Code 1908. He relies upon (i) Dhanna Singh and others vs.
Baljinder Kaur and others, (1997) 5 SCC 476; (2) Raj Kumar Vs.
Sardari Lal and others, (2004)2 SCC 601; and (3) Smt. Ved Kumari
(dead Through Her Legal Representative) Dr. Vijay Agarwal Vs.
Municipal Corporation of Delhi Through its Commissioner, (2023)13
SCC 651.
To conclude, learned Counsel for the petitioners submits
that the Respondent No.7 is claiming his right through the
Respondent No.2 and hence the Decree against Respondent No.2 is
squarely binding on the Respondent No.7. Hence, the Executing
Court ought to have issued necessary directions to the Respondent
No.7 under Order 21 Rule 35 of the C.P. Code of 1908.
4.4 Mr. Pravin Mandlik, learned Senior Advocate i/b Mr.
Pratap Mandlik, however strongly advocates the impugned order
passed by the executing Court. He submits that the Petitioner has
not approached the Court with clean hands and that the petitioner
has suppressed material facts. Mr.Mandlik further submits that the
Petitioner’s suit came to be dismissed against the Respondent No. 7
on account of deletion of Respondent No.7’s name in the Suit itself.

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4.5 Mr.Mandlik’s main thrust is, if the Respondent No.7 was
not a judgment debtor to the Decree, Petitioner’s application below
Exh. 145-D was not at all maintainable. That, the Respondent No.7
was not party to the suit and appeal while the Decree was passed
therein. He would submit that the Respondent No.7 was excluded
from the Suit at the behest of the Petitioner. That, the Petitioner
cannot seek benefit of his own wrong. That, in the given
circumstances the Respondent No.7 is a Third Party against whom
the Decree can not be executed.
4.6 He submits that the application was filed in collusion with
other Defendants to defeat Respondent No.7’s right. Withdrawal of
the execution proceedings against the other purchasers- Judgment
Debtors demonstrate that the petitioner only wants to corner the
Respondent No.7. He also submits that the application was not
timely filed which shows that it was not a bona fide application. As
such, referring to his reply affidavit learned Senior Advocate Mr.
Pravin Mandlik prays to dismiss the Writ Petition.
The Respondent No.7 chose not to place any citation
into service in support of the response and strenuously rely upon
the facts, the sequence of events and the findings of the Executing
Court .

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5. In view of the rival arguments advanced by the
respective parties, following law points emerge for discussion:
5.1 Consequences of ‘deletion of a party in a suit’ vis-a-vis
‘withdrawal of suit against a party’;
5.2 Can the Respondent No. 7 be said to be “any person
bound by decree’ within the meaning of Order 21 Rule
35 of the Civil Procedure Code 1908 in the light of
Section 52 of the Transfer of Property Act?
5.3 Whether, in given set of facts, deletion of Respondent
No.7’s name in the Suit estops the Petitioner from
taking recourse to the law governed by Section 52 of
the Transfer of Property Act read with Section 146 of
the C.P. Code of 1908?
6. Discussion and consideration:
6.1 I find that there is no material controversy as regards
the facts as observed supra. Crucial facts around which the debate
wriggles are:-
(i) While Petitioner’s Suit of possession was pending
against the Respondent No.2, the Respondent No. 7
purchased a portion of the Suit property from the
Respondent No.2. The transfer was without any leave of
the Court.

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(ii) The petitioner added Respondent No. 7 in the Suit
as Defendant no.11, and later with leave of the Court
deleted his name. Initial observation of the Trial Court
recording the ‘deletion’ as ‘withdrawal of Suit’ was
subsequently cured by the Trial Court under the orders of
this Court. The petitioner explained the deletion taking
recourse to Section 146 of 1908 Code read with Section
52 of the Transfer of Property Act.
(iii) The Respondent No.7 was not party to the Decree
due to his deletion in the Suit. However, Respondent
No.7 claims his right through the respondent No.2 – his
vendor.
(iv) The Decree for Possession is intact even today. The
Respondent no.7 has never challenged the said
Judgment and Decree independently or otherwise.
6.2 Paragraph No.5 of the impugned order are the findings
rendered by the Executing Court. It has observed that the
Respondent No.7’s name was deleted in the Suit by treating the said
application for withdrawal of the Suit and that therefore, the
Respondent No.7 can not be said as ‘any person bound by the
Decree within the meaning of Order 21 Rule 35 of CP Code 1908’.

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6.3 Apparently, these findings of the Executing Court are
perverse to the record. The Executing Court has neither taken into
consideration the observations made by this Court vide order dated
09.01.2007 in Writ Petition No. 8020 of 2006, nor has looked into
the order dated 24.09.2007 subsequently passed by the learned
Judge of the Trial Court.
6.4 While disposing of the Writ Petition No. 8020 of 2006,
this Court specifically observed that Petitioner’s application Exh. 236
was for simplicitor deletion of Respondent No.7’s (Deft. No.11) name
from the array of Defendants. It is further observed that the Trial
Court then travelled beyond the scope of the application. Thus,
directing the Trial Court to decide Petitioner’s application Exh.236
exclusively under Order 1 Rule 10 of the C.P. Code 1908, this Court
observed as below:-
“7. Coming to the facts of the present case, it can be
seen that the application below Exh.236 filed by the
present petitioner was for a limited purpose for deleting
the present respondent i.e defendant No.11 from the
array of defendants. In my considered view, the learned
trial court could not have travelled beyond the scope of
the application, treating it as an application for
withdrawal of the suit against the said defendant. The
court could have considered whether the application for

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deleting defendant No.11 could be granted or not. For
that, it would have been guided by Order 1 Rule 10 of
C.P.C.
8.In the result, the writ petition is partly allowed. The
impugned orders dated 28th September, 2006 passed by
the Civil Judge (S.D.), Aurangabad and the one passed in
review i.e. MARJI NO. 205/2006, dated 17.3.2006, are
quashed and set aside. The learned trial court is directed
to consider the application of the present petitioner for
deletion of the defendant No.11 on its own merits, in
view of the observations made herein above, and decide
the same preferably within a period of six weeks.
(emph.)”
6.5 Upon remittance of the matter back, the Trial Court then
rightly passed order on 24.09.2007 allowing Petitioner’s application
Exh. 236; and respondent No.7’s name was deleted as Defendant
No.11. This was a plain deletion of the Respondent No.7 in the Suit
under Order 1 Rule 10(2) of the C.P. Code of 1908.
6.6 In view of above, while passing the impugned order, the
Executing Court manifestly overlooked the observations made by
this Court in Writ Petition No. 8020 of 2006 and the order dated 24-
09-2007 passed by the Trial Court.

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The reasoning rendered by the Executing Court in the
impugned order remained impressed only with the earlier orders
passed by the Trial Court on 28.09.2005 on application Exh. 236 and
order dated 16.11.2006 in review proceedings. The both orders were
already quashed and set aside by this Court in Writ Petition no. 8020
of 2006. As such, the findings of the learned Judge of the Trial Court
at paragraph No.5 of the impugned order are struck down.
6.7 Now, the arguments of both sides on merit need to be
tested on the provisions of law.
Order 1 Rule 10 of the C.P. Code of 1908 deals with
addition and deletion of parties to a Suit. Relevant portion reads
thus:
10. (2) Court may strike out or add parties – The
Court may at any stage of the proceedings, either upon
or without the application of either party, and on such
terms as may appear to the Court to be just, order that
the name of any party improperly joined, whether as
plaintiff or defendant, be struck out, and that the name,
of any person who ought to have been joined, whether as
plaintiff or defendant, or whose presence before the
Court may be necessary in order to enable the Court
effectually and completely to adjudicate upon and settle
all the questions involved in the suit, be added.

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The provision speaks about striking out a party
(plaintiff/defendant). This empowers the Court to delete name of
such party whose presence there in suit is improper. Court can
exercise this power suo motu or at the instance of a party. Term
‘improper’ in the context of Order 1 Rule 10 of the C.P. Code of 1908
means ‘not suitable or required for the situation’.
Order 1 Rule of the C.P. Code of 1908 is usually invoked
in a Suit whereby : (i) Court may add or delete any party in the Suit;
(ii)Plaintiff as also Defendant may file an application for addition or
deletion of a party; and (iii) A third party may apply to the Court for
its addition in the Suit. This is apropos the situation and the
circumstances of each case. In no terms it bespeaks of perpetual
forfeiture or waiver of a party’s claim against another party in
respect of the subject matter of the suit.
6.8 Placing Order 1 Rule 10 (2) into service is proportional to
the status of a party corresponding to the claim ‘by’ or ‘against’ such
party and the prevalent circumstances. By no stretch of imagination
it can be said that striking out a defendant under Order 1 Rule 10(2)
perpetually concludes right of a plaintiff against such defendant. This
distinctly differs from abandonment of a claim against the
defendant(s) under Order 23 Rule 1 of the C.P.C.1908.

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6.9 The Law makers have therefore thoughtfully drafted
Order 23 Rule 1 in the C.P. Code 1908. Withdrawal of a Suit is
governed by Order 23 Rule 1 of the Civil Procedure Code 1908 which
reads thus:
“ORDER XXIII
(Withdrawal and Adjustment of Suits)
3 [1. Withdrawal of suit or abandonment of part of claim.
—(1) At any time after the institution of a suit, the
plaintiff may as against all or any of the defendants
abandon his suit or abandon a part of his claim: Provided
that where the plaintiff is a minor or other person to
whom the provisions contained in rules 1 to 14 of Order
XXXII extend, neither the suit nor any part of the claim
shall be abandoned without the leave of the Court.
(2)….
(3)…..
(4)….
(5)…..”
6.10 The text of Order 23 Rule 1 of C.P. Code of 1908 in
unequivocal terms provides that withdrawal results in an explicit
and cautious abandonment of a claim by the plaintiff ‘for himself’, or
‘against such defendant’ against whom the Suit is sought to be
withdrawn. ‘Abandonment of a claim is an object under Order 23 of
the C.P. 1908 Code, while ‘Withdrawal’ is the procedure adopted for

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the object’. The Oxford Learner’s dictionary defines ‘abandonment’
as “ the act of giving up an idea or stopping an activity with no
intention of returning to it .”
Thus, had the Plaintiff withdrawn a suit against all or any
or some of the defendants, the plaintiff neither can re-sue such
defendant(s) on the same subject-matter nor can reserve any further
right, which the plaintiff could have gained upon getting the Suit
decreed against such defendant(s). This is because the Plaintiff
cautiously and explicitly ‘abandons’ the claim against such parties.
6.11 An exception to the general rule (supra) governing
withdrawal of suit is carved out in Order 23 Rule 1 (3). This provision
makes a room to the plaintiff to file a fresh suit on the same subject-
matter subject to the permission from the Court.
6.12 ‘Order 1 Rule 10’ and ‘Order 23 Rule 1’ are not at par as
regards to the rights “of or against” a party sought to be placed out
of the suit proceedings. Both provisions operate with absolutely
different objects, in different circumstances, and with different
consequences.

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While the earlier comes into play on account of
requirement or non-requirement of a party in the suit corresponding
to situation prevalent; the later perpetually disables Plaintiff’s right
against the Defendant in respect of the Subject-matter of the Suit,
unless leave of the Court was obtained.
Following the ratio legis as observed above, I am of the
considered view that because the petitioner deleted Respondent
No.7’s name from the array of Defendants in the Suit, it would be
incorrect to hold that the Respondent No.7 could not have been
involved in the consequential proceeding.
These findings are supported by one more legal position.
6.13 It is an admitted fact that the Respondent No.7
(defendant no.11) purchased the Suit property from the
Respondent No.2, during the pendency of Petitioner’s Suit against
Respondent No.2 for possession of the suit property.
The situation and the transaction is governed by Section
52 of the Transfer of Property Act, which reads thus:
“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

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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.]”
No other words are needed to hold that status and right of the
Respondent no.7 is seriously affected by Section 52 of the Transfer
of Property Act 1882.
6.14 Although Mr. Pravin Mandlik, learned Senior Advocate
argued that the Suit was in collusion with other Defendants, nothing
on record is placed by the Respondent No.7 to convince that the Suit
was a collusive one. I have also gone through the said objection
incorporated in the reply affidavit. Mere settlement between the
Petitioner and the other Judgment Debtors (JDs) – similarly situated
subsequent purchasers, in the execution proceeding does not create
any exceptional case for protection to the Respondent no.7.

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The other Judgment Debtors -subsequent purchasers as
also the Respondent no. 7 stand on the same platform. They all
claim their interest through their vendor i.e. the Respondent No.2 -
main Judgment Debtor. The decree against Respondent no.2 is
squarely binding on all of them.
6.15 The above findings have candling effect on the
Respondent No.7’s objection against applicability of Order 21 Rule 35
of the C.P. 1908 Code. The net and straight consequence is that the
Respondent No. 7 falls within the meaning of ‘any person bound by
decree’ as texted in Order 21 Rule 35 of the C.P. Code of 1908.
6.16 The Petitioner claims that his application is benefited
even by Section 146 of the C.P. Code 1908 which reads as thus:
“ Save as otherwise provided by this Code or by
any law for the time being in force, where any
proceeding may be taken or application made by or
against any person then the proceeding may be taken or
the application may be made by or against any person
claiming under him”.
Its an admitted fact that the Respondent No.7’s claims
his right through the Respondent No.2, being his vendee. The
transfer of property was executed during pendency of Suit. The
words ‘ by or against any person claiming under him’ incorporated in

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the Section 146 of the C.P. Code of 1908 clearly demonstrate that
the petitioners’ right against the Respondent No.7 is well protected.
6.17 On facts, I have already observed that the learned Judge
of the Execution Court erred in holding the deletion of Respondent
No. 7 from the array of parties in the Suit was a withdrawal of suit
against the Respondent No.7.
6.18 For the reasons recorded above, I am not convinced
with the arguments advanced by learned Senior Advocate for the
Respondent No.7, that ‘deletion of the Respondent No.7 in the Suit
bars the Petitioner from seeking enforcement of Order 21 Rule 35 of
the 1908 Code. Since I have held that ‘deletion of a Defendant from
the array of parties’ is not at par with ‘withdrawal of a Suit against
the Defendant’, in view of Section 52 of the T.P.Act 1882, the case
is covered by the doctrine of lis pendens. I do not comprehend with
the Respondent No.7’s case that execution cannot be warranted
against him as he was a third party.
6.19 Pursuant to the arguments of learned Senior Counsel
Mr.Mandlik for the Respondent No.7, I have gone through the reply
affidavit filed by the Respondent No.7. He has referred to the
arguments recorded and observations made by the Trial Court in the
Judgment and Order dated 27.10.2009 while dismissing the Suit. The

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Appellate Court reversed the findings of the Trial Court and allowed
the Appeal of the Plaintiff. The Suit was decreed by the Appellate
Court. Hence reliance placed on observations of the Trial Court would
not help the Respondent No. 7.
6.20 The objection that the Petitioner filed application Exh.
145-D without quoting provisions of law would not stand fatal to the
petitioner’s application. The Court has to examine the prayer in a
proceeding in the light of the pleadings and not presence/absence of
title or even incorrect titling. In the case in hand, non-titling the
application itself does not disqualify the application from being
considered on merit. I have also gone through the application exh.
145-D itself. Looking into the text of Petitioner’s application, it is
seen that the application was filed clearly mentioning Section 52 of
the Transfer of Property in the application. The sequence of events is
also described. For these reasons, I do not accept this objection.
6.21 The other objection that the Petitioner did not approach
with clean hands and has suppressed material facts is also not
supported by any evidence. In fact the record shows that the
Petitioner disclosed every proceedings and the concerned events.
The Respondent No.7 could not demonstrate as to how and what
delay, if any, is fatal to Petitioner’s application.

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6.22 On the other hand, recitals of the reply affidavit clearly
show that the Respondent No.7 unequivocally admits that he claims
his right through Respondent No. 2 from whom he has purchased
Suit property during pendency of the Suit.
6.23 This tempts me to quote what the Honorable Supreme
Court has observed at paragraph No. 9 of its Judgment in the case of
Raj Kumar Vs. Sardari Lal (supra) :
9. A Decree passed against the Defendant is available
for execution against the transferee or assignee of the
Defendant Judgment-Debtor and it doesn’t make any
difference whether such transfer or assignment has taken
place after the passing of Decree or before the passing of
the Decree without notice or leave of the Court.”
6.24 I have gone through the another Judgment cited by the
learned Counsel for Petitioner in the case of Dhanna Singh (supra).
The Honorable Supreme Court observed that a subsequent
purchaser of Suit property can not lead evidence if his predecessor
in title has waived the opportunity to lead evidence. The petitioner’s
facts are a bit different than the facts in the cited case. However, it is
held that a subsequent purchaser cannot have any right beyond
and above his vendor.

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6.25 The Honorable Supreme Court while protecting right of
the Decree-Holder/Plaintiff, against hurdle caused by a third party in
whose favor the Judgment Debtor Defendant transferred the Suit
property, observed in the case of Ved Kumari (Died) Vs.
Municipal Corporation of Delhi, (2023)13 SCC 651 :-
“ 15. In view of the settled legal position, as noted
(supra), it was the duty of the Executing Court to issue
warrant of possession for effecting physical delivery of
the suit land to the decree-holder in terms of suit
schedule property and if any resistance is offered by any
stranger to the decree, the same be adjudicated upon in
accordance with Rules 97 to 101 of Order XXI of the CPC.
The Executing Court could not have dismissed the
execution petition by treating the decree to be in-
executable merely on the basis that the decree-holder
has lost possession to a third party/encroacher. If this is
allowed to happen, every judgment-debtor who is in
possession of the immovable property till the decree is
passed, shall hand over possession to a third party to
defeat the decree-holder’s right and entitlement to enjoy
the fruits of litigation and this may continue indefinitely
and no decree for immovable property can be
executed.”
These observations by the Honorable Supreme Court clearly
cover Petitioner’s case. In no case, deletion of a defendant U/O 1
Rule 10 of C.P.C.1908 shall come in the way of applicability of Order
21 Rule 35 r/w section 146 of the Civil Procedure Code 1908, while
right of such defendant is affected by Section 52 of the Transfer of
Property Act 1882.

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6.26 From the above discussion, and the guiding principles
articulated by the Honorable Supreme Court in the cases referred
(supra), I hold that,
(I) Unlike Order 23 Rule (1) of the Civil Procedure Code
1908, a deletion of a Defendant in a Suit under Order 1 Rule 10 does
not perpetually abandon/forfeit the plaintiff's claim against the
deleted Defendant”, subject to the procedure to be followed;
(ii) A Purchaser pendente lite a Suit for possession filed
against his vendor, falls within the definition of “any person bound
by Decree for possession” within the meaning of Order 21 Rule 35 of
the Civil Procedure Code 1908.
(iii) While facts of a case are covered by Section 146 and
Order 21 Rule 35 of 1908 Code read with Section 52 of the Transfer
of Property Act, deletion of a Defendant in the suit under Order 1
Rule 10 of C.P. Code of 1908 does not bar the Decree holder from
executing Decree against the deleted Defendant. There can be no
estoppel against the Law.
7. I have dealt with every point of argument advanced by
the Petitioner and the objections raised by the Respondent No.7. For
the reasons recorded above, I am satisfied that the Petitioner has

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made out a successful case for interference of this Court under
Article 227 of the Indian Constitution. The petition deserves to be
allowed.
8. Before parting, I express my sincere appreciation for the
fair assistance by the learned Counsel for the Petitioner and the
learned Senior Counsel for the Respondent No.7, respectively.
9. Hence I pass following order:-
ORDER
I. Writ Petition is allowed;
II. Impugned order dated 19.08.2024 passed by
the learned Civil Judge, Senior Division (Corporation
Court), Aurangabad in Regular Darkhast no. 08 of 2013 is
quashed and set aside.
III. The Application Exh. 145-D filed by the
Petitioner in Regular Darkhast no. 08 of 2013 pending
before the learned Civil Judge, Senior Division (Corporation
Court), Aurangabad, stands allowed. The Executing Court
to proceed in accordance with law.

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IV. Considering the long pendency of the
Execution Proceeding, the Executing Court is directed to
expedite the proceeding and conclude the same as
expeditiously as possible and in any case, within a period
of 06 months from today.
V. Rule made absolute in above terms.
[AJIT B. KADETHANKAR, J.]
………..
KBP