Kashmir HC Rejects Property Occupant’s Latest Bid To Block 1997 Decree’s Execution, Imposes ₹20,000 Costs For Abuse Of Process

In brief

The question

Whether the petitioner could assert a new claim as a *lis pendens* purchaser despite earlier proceedings in which he claimed title through an oral gift and the applicability of *lis pendens* had been decided.

The court held

The Court rejected the petitioner’s grounds, holding that the issues had been conclusively determined and that the challenge was an abuse of the process of law intended to frustrate execution of the decree.

It also directed

It dismissed CM(M) No. 331/2025 with costs of ₹20,000, payable within four weeks, and closed CCP(S) No. 596/2021.

01Facts

Mst. Zainab Begum obtained an ex parte decree dated 24 June 1997 recognising her right of prior purchase and directing delivery of possession of the property.

¶ 6–11, 15–17

The petitioner, who claimed an interest in the property, unsuccessfully challenged the decree and its execution in multiple proceedings before the High Court and the Supreme Court.

¶ 6–11, 15–17

Although the executing court consigned the execution proceedings to records on 30 July 2018 after receiving a compliance report, the decree-holder disputed that report the next day; the petitioner also asserted that he was in possession.

¶ 12–14

In subsequent execution proceedings, the executing court directed the authorities to secure and seal the property.

¶ 1–2, 23–24, 33

The petitioner challenged the order dated 8 August 2025 under Article 227, contending, among other things, that he was a *lis pendens* purchaser, the decree was a nullity, and the executing court was *functus officio*.

¶ 1–2, 23–24, 33

02Issues

i.Whether the petitioner could assert a new claim as a *lis pendens* purchaser despite earlier proceedings in which he claimed title through an oral gift and the applicability of *lis pendens* had been decided.

¶ 24–28

ii.Whether the decree was a nullity and inexecutable on the ground that the Right of Prior Purchase Act did not apply to the commercial property.

¶ 29–32

iii.Whether the executing court became *functus officio* after consigning the execution proceedings to records, and could subsequently issue directions to secure the property.

¶ 33–34

iv.Whether the petitioner was denied an opportunity of hearing or could re-agitate matters already determined in earlier proceedings.

¶ 31–32

03Law Applied

The Court applied the doctrine of *lis pendens*, holding that transfers or alienations made during pending litigation are subject to the eventual judgment and decree.

¶ 25–26

It applied the principles of finality of litigation and *res judicata*, including interlocutory *res judicata*: a matter decided at an earlier stage of the same litigation cannot ordinarily be re-agitated at a later stage.

¶ 31

It also relied on the principle that a litigant must not take inconsistent positions (*Amar Singh v. Union of India*, (2011) 7 SCC 69).

¶ 27

It also relied on the executing court’s obligation to proceed with execution where no stay has been granted, consistent with *Rahul S. Shah v. Jinendra Kumar Gandhi*, (2021) 6 SCC 418.

¶ 33–34

The petitioner had previously raised the challenge to the decree’s validity and executability under Section 47 of the Code of Civil Procedure.

¶ 29

Provisions in the judgment · 1 · Linked ones open on LawLens

Code of Civil Procedure, 1908 Section 47

04Reasoning

The petitioner’s earlier case was that he derived his interest through an oral gift; the Division Bench had already held that the decree bound subsequent beneficiaries of transactions made during the suit, and that determination had attained finality.

¶ 25–28

The petitioner could not replace that case with a new purchaser claim.

¶ 25–28

His challenge to the decree’s applicability to commercial property had likewise been raised in the earlier revision, review, and Supreme Court proceedings, and could not be reopened.

¶ 29–31

The Court found that the petitioner had been heard in prior proceedings, defeating his claim that he was condemned unheard.

¶ 32

Further, the petitioner himself had asserted possession after the execution proceedings were consigned to records, while the decree-holder disputed the compliance report; the earlier consignment therefore did not prevent the executing court from continuing execution.

¶ 33–34

The petitioner was also precluded from repeating the *functus officio* argument, which had already been addressed in earlier proceedings.

¶ 33–34