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Judgment
Appellant/applicant has filed this appeal challenging the judgment dated 21.7.2025 passed by the First Additional District Judge, Dabra, District Gwalior, in MJC No.28/2025, whereby his objection under Order XXI Rule 97 of CPC has been rejected by the executing court.
Facts giving rise to the filing of the present appeal are that the appellant- Bharat Petroleum Corporation Limited (in short, “Company”), filed an application under Order XXI Rule 97 of CPC, lodging objections to the delivery of possession of suit property in execution of the judgment and decree dated 11.8.2021, whereby this Court passed a decree of specific performance in favour of respondent no.1 & 2 and against respondent no.3. The Company claims that it is in possession of suit property pursuant to the lease deed executed in its favour by respondent no.3 on 27.03.2003, which was valid up to 31.5.2032. The Company has been running a petrol pump over the land till date. It is its further case that, in continuation of the aforesaid lease deed, a fresh lease deed was executed by respondent no.3 on 1.3.2020 for a period of 19 years and 11 months, and therefore, possession of the suit land cannot be taken from it in execution of the decree, wherein the Company is not a party.
The objection was opposed by respondent no.1 & 2 (decree holders) by filing a reply. The learned trial court, by the impugned judgment dated 21.7.2025, has rejected the objection, holding that the lease deed dated 01.03.2020 is not in continuation of the earlier lease deed executed in the year 2003. It has been held that since the Company is a transferee pendente lite, it is bound by the decree passed in favour of respondent no.1 & 2. Challenging this judgment, the present appeal has been filed.
Learned senior counsel for the appellant- Company submitted that the company was given the suit land on lease by respondent no.3 in the year 2003 for the period from 1.6.2003 to 31.5.2022. The Company has established its petrol pump over the said land. Earlier the respondent no.3 had filed a civil suit for recovery of rent and possession against the Company. The suit was the subject matter of Civil Suit No.10-A/2012, which was dismissed by the trial court vide judgment and decree dated 31.1.2014. Challenging the same, respondent no.3 had filed First Appeal No.101/2014 before this Court.
In the first appeal, a compromise was reached between the Company and respondent no.3, and the first appeal was accordingly disposed of. Learned counsel further submitted that, in continuation of the aforesaid lease, another lease deed was executed by respondent no.3 in favour of the Company on 01.03.2020, which is valid for a period of 19 years and 11 months. He submits that the trial court grossly erred in holding that the present lease is not in continuation of the previous lease. Learned counsel argued that since the Company was a tenant in the suit land since prior to the filing of the suit by respondent no.1 & 2 against respondent no.3, it cannot be termed as a transferee pendente lite and is thus entitled to protect its possession.
He referred to the provisions of Order XXI Rule 36 of CPC and submitted that in execution of a decree for specific performance, only symbolic possession can be given to respondent no.1 & 2 and not the physical possession. As per his submission, after the sale deed is executed in favour of respondent no.1 & 2, the Company becomes the tenant of respondent no.1 & 2, and possession of the suit land can be taken only by adopting due process of law. He placed reliance on the judgment of the Apex Court in the case of Silverline Forum Pvt. Ltd. Vs. Rajiv Trust & Another reported in (1998)3 SCC 723 and the judgment of this Court in the case of Ramkumar & Anr. Vs. Pankaj & Ors. reported in 2010(II) MPJR 186.
Learned senior counsel also referred to the application under Order XLI Rule 27 of CPC, which was filed in First Appeal No.292/2009 between respondent no.1 & 2 and respondent no.3, wherein the lease deed executed in favour of the company was placed on record. He referred to the order passed by this Court on 11.08.2021 in F.A. No.292/2009, in particular the observations made in paragraph 11, and submitted that this Court has already held that the Company is entitled to protect its possession over the suit land. He thus prayed for setting aside of the impugned judgment and for acceptance of objection raised by appellant- Company.
Refuting the submissions made by the appellant's counsel, learned counsel appearing for respondent no.1 & 2 vehemently argued that the lease deed executed in favour of the Company in the year 2003 stood terminated with the order passed on the compromise by this Court on 11.02.2017 in F.A. No.101/2014. He referred to the terms of the compromise as contained in the application under Order XXIII Rule 3 of CPC, which is available at page no.56 of the paper book of this appeal, and submitted that, as per the compromise, respondent no.3 was required to hand over peaceful possession of the premises to respondent no.3 and, in lieu thereof, respondent no.3 was directed to pay Rs.20,86,080/- to the company. As per his submission, this compromise terminated the previous lease deed.
Learned counsel further referred to the Letter of Intent dated 01.04.2019, which is available in the trial court record, and submitted that pursuant to this Letter of Intent, a fresh lease deed was executed on 1.3.2020. This letter gives reference to an advertisement issued on 14.12.2018 and, pursuant thereto, respondent no.3 had offered his land on lease.
Learned counsel also referred to the lease executed in the year 2003 to say that a total area of 22,500 sq. ft. was leased out, whereas in the subsequent lease of 2020, the total area leased out is 35x45 (1575) sq. ft. He also submitted that the rent fixed as per the new lease deed is higher than the rent fixed under the old lease. Learned counsel thus submitted that the appellant took possession of the suit land during the pendency of First Appeal No.292/2009 and, therefore, is governed by the provisions of Section 52 of the Transfer of Property Act, 1882.
Learned counsel also referred to the provisions of Order XXI Rule 102 of CPC and submitted that objection cannot be filed by a person who is a transferee pendente lite. He also submitted that the provisions of Order XXI Rule 36 of CPC are also not attracted as the possession is given to appellant during pendency of appeal. In order to bolster his submissions, learned counsel placed reliance on the Apex Court judgments in the case of Krishan Gopal Vs. Gurmeet Kaur, reported in 2025 SCC Online SC 1438 and in the case of Smt. Ved Kumari Vs. Municipal Corporation of Delhi , reported in (2023)13 SCC 651 .
Learned counsel for respondent no.1 & 2 also informed this Court that possession of the suit property has already been taken from the company in execution of the decree passed in favour of respondent no.1 & 2 as is evident from the order sheet of execution case dated 14.06.2025.
Considered the arguments and perused the record.
Before adverting to the facts of the case, it is profitable to refer to the provisions of Order XXI Rule 102 of the CPC, which reads as under:
"102. Rules not applicable to transferee lite pendente .—
Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgement-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.
Explanation.—In this rule, “transfer” includes a transfer by operation of law."
When a decree is passed, the executing court is duty bound to ensure delivery of possession to the decree-holder. If any resistance is offered by stranger to the decree, the same is to be adjudicated as per Rules 97 to 101 of Order XXI CPC. Merely because judgment-debtor has delivered possession to a third party during pendency of lis is not a ground to deny delivery of possession to the decree holder. The Privy Council was considering objection raised by a transferee pendenti lite from the judgment debtor in the case of Parmeshari Din vs. Ram Charan reported in 1937 SCC OnLine PC 59 (AIR 1937 PC 260). The Privy Council held as under:
"It is then said that the appellant was not a party to the decree which is sought to be executed against him. But he took the property from the defendant pendente lite and must be treated as his representative in interest. He is bound by the result of the decree. If he had not obtained possession of the property from the defendant, the latter would have been required to deliver it to the plaintiffs. And the mere circumstance that he got possession from the defendant in pursuance of a transfer, which was invalid as against the plaintiffs, cannot detract from their rights under the decree. As observed by Cranworth. L.C. in Bellamy v. Sabine [(1857) 1 De G. and J. 556.], “pendente lite neither party to the litigation can alienate property in dispute so as to effect his opponent”. The decree-holders are, therefore, entitled to execute the decree against the appellant, who is the representative of their judgment-debtor. As stated above, they obtained only symbolical possession from the judgment-debtor, and there is no reason why they should not be allowed to proceed against his representative who is in actual possession of the property.
The dispute between the appellant and the decree-holders related to the execution of the decree, and, as he was the representative of the judgment-debtor, the Court executing the decree had jurisdiction under S. 47 of the Civil Procedure Code to determine that dispute. The Court of first instance did determine it, and, as all the requirements of the section were satisfied, the decree-holders were entitled to appeal against that decision to the High Court.
In their Lordships' opinion the appellant cannot be allowed to defeat the claim of the decree-holders. Their Lordships, will, therefore, humbly advise His Majesty that the appeal should be dismissed, They will, however, make no order as to the costs of the appeal, as there is no appearance before them by, or on behalf of, the respondents."
Recently, the Apex Court in Ved Kumari (supra) considered the effect of allowing a transferee pendenti lite to resist delivery of possession in execution of decree. The Court held as under:
28.In most recent judgment in Jini Dhanrajgir v. Shibu Mathew [Jini Dhanrajgir v. Shibu Mathew, (2023) 20 SCC 76 : 2023 SCC OnLine SC 643], the legal position has been reiterated that Rules 97 to 103 of Order 21 CPC provide the sole remedy both to the parties to a suit as well as to a stranger to the decree put to execution.
29.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 21CPC. The executing court could not have dismissed the execution petition by treating the decree to be inexecutable 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."
Reading of the aforesaid provision makes it clear that a third party having acquired interest in the suit property from the judgment-debtor during the pendency of the lis, is not covered under the term "third party" and cannot be allowed to resist execution of decree.
Keeping in view the aforesaid legal position, the facts of this case needs to be considered.
It is gathered from records that respondent no.1 & 2 had filed C.S. No.27-A of 2008 for specific performance of agreement dated 05.05.2006 against the respondent no.3. The suit was initially dismissed by Trial Court vide judgment and decree dated 22.07.2019. The same was challenged by respondent no.1 & 2 before this Court in F.A. No.292/2009. The appeal was allowed by this Court vide judgment dated 11.08.2021 and a decree for specific performance was passed in favour of respondent no.1 & 2 and against respondent no.3.
It is gathered that the sale deed in execution of aforesaid decree is executed in favour of respondent no.1 & 2 somewhere in the year 2022. The decree-holder made an application under Section 151 CPC requesting for delivery of physical possession of suit property which was rejected by trial Court on the ground that there is no direction for delivery of possession in the decree. This order of trial Court was challenged before this Court in M.P. No.2325/2024 which was allowed by this Court vide order dated 02.12.2024. Accordingly, the respondent no.1 & 2 have been held entitled to recover possession of suit property.
So far as appellant is concerned, it is not in dispute that the total area of 22,500 sq. ft. out of Survey No.1827 min. and Survey No.1826/6 min., situated at Dabra, District Gwalior, was initially leased out to the Company by respondent no.3 vide lease deed dated 27.03.2003. The lease was valid up to 31.5.2032. It appears that some dispute arose between the Company and respondent no.3, which led to filing of Civil Suit No.10-A/2012 by respondent no.3 for recovery of arrears of rent and possession of the property. The suit was initially dismissed by the trial court, and the matter travelled up to this Court in First Appeal No.101/2014. The matter was amicably settled by the Company and respondent no.3 in the following terms mentioned in compromise application:
"A. The respondent shall handover the peaceful possession of the premises to the appellant.
B. The appellant shall pay the amount Rs.20, 86,080/- to the respondent by way of cheque. No (415918 Dated 5/3/17 PNB).
C. The respondent shall handover the peaceful possession and all relevant documents to the appellant within one month from the date of receive of the payment.
D. If any machinery or other company assets over the premises the respondent will remove the same.
E. Due to compromise the appellant entitled the refund of the court fees, respondent will not object in this respect.
F. If the possession is not hand over by the respondent than the appellant by way of this decree entitled to take thee the possession from the court while fie execution before the competent court of law."
As per the terms of the settlement, respondent no.3 was required to pay Rs.20,86,080/- to the company, and in lieu thereof, the Company was required to deliver peaceful possession of the land to respondent no.3 along with all relevant documents. There is a dispute between learned counsel for the rival parties with regard to the fulfillment of the terms of the compromise. On one hand, the appellant's counsel submits that the terms of compromise were not complied with, whereas counsel for respondent no.1 & 2 asserts that the terms of the compromise were duly complied with. However, in either case, as seen from the terms of the compromise, the lease deed dated 27.3.2003 came to an end.
After the disposal of first appeal by this Court in terms of compromise, the Company issued a fresh advertisement on 14.02.2018 (as gathered from LOI) inviting applications for leasing out the land. The respondent no.3 applied for the same, and his offer was accepted. Accordingly, the Letter of Intent was issued in his favour on 01.04.2019. Pursuant thereto, a fresh lease deed was executed on 01.03.2020 in respect of suit property for a period of 19 years and 11 months. From the aforesaid facts, it becomes evident that the lease deed dated 01.03.2020 is not in continuity with the lease deed dated 27.3.2003, rather it was a fresh contract between the parties.
It is also important to note that the area leased out to the Company in the year 2003 was 22,500 sq. ft. (which is subject matter of execution), whereas by way of lease deed dated 01.03.2020, the area leased out is 35x45 (1575) sq. ft. only. This also shows that the new lease deed is not in continuation with the old one. Further, there is a huge difference in rent as per the old and new lease deeds which has been taken note of by the learned trial Court in impugned judgment.
The trial court, taking into account these facts, has recorded a cogent finding in para 14 & 15 and has held that the lease deed dated 01.03.2020 is not in continuity with the previous lease deed. The senior counsel for the appellant vehemently argued that the company is in possession of the suit land since 2003, and mere execution of a fresh lease deed would not change its status as a tenant since 2003. His submission is considered; however, the same is not found worth acceptance. It is the case where the lease deed dated 01.03.2020 is not in extension of the previous lease deed. The new lease deed nowhere mentions the previous lease executed in the year 2003. Further, in view of compromise between appellant and respondent no.3, the previous lease stood terminated. Thus, for all practical purposes, it is a fresh lease deed executed in the year 2020 which is during the pendency of the first appeal before this Court.
The learned senior counsel for appellant heavily relied upon following observations made by this Court in F.A. No.292/2009:
"11.Plaintiff is always “Dominus Litus” means plaintiff is the master of a suit. The person has real interest in the decision of a case. Plaintiff is the person who will be affected by the decision of the case. Plaintiff is the controller of a suit, therefore, he is called “Dominus Litus”. He is not bound to sue against every possible adverse claim in the suit and he may chose to implead only those persons as defendant against whom he wishes to proceed. Therefore, considering the facts and circumstances of the case, it is plaintiffs' sole discretion to make person of their choice as party in the suit. Even if Bharat Petroleum Limited is the lessee over the disputed property, he is not having jurisdiction to raise objection with regard to transfer of property by lawful owner through valid contract. If such transaction is done and property is being sold, only the ownership/ owner of the property will change but the right of the lessee shall remain intact and the lessee shall be deemed to be the lessee of the purchaser of the land, who becomes the lawful owner of the disputed land."
It was projected before this Court, as is evident from reading para 4 (at page 8) of judgment, that the Company is a lessee on the suit property since 2003 and after compromise decree passed by this Court, another lease deed has been executed in 2020. It was projected that the lease is in continuity with the old lease. In this context, aforequoted observations were made by this Court. However, the same cannot be said to be finding on the issue inasmuch as in the first appeal, this was not the issue involved. The same cannot have the effect of res-judicata between the respondent no.1 & 2 and the Company in execution proceedings. The observations were made while considering the prayer of respondent no.3 to implead Company as party in the appeal. Therefore, the appellant do not get any help from the aforequoted observations of this Court.
The learned senior counsel for Company also argued that the respondent no.1 & 2 knew about the lease deed executed in Company's favour by respondent no.3 and, therefore, Company ought to have been impleaded as party in the appeal. However, this submission is also not acceptable in view of Apex Court judgment in the case of B. Gangadhar vs. B.G. Rajalingam reported in (1995)5 SCC 238, wherein the Court held as under:
"9.It is also not necessary that the tenant should be made party to the suit when the construction was made pending suit and the tenants were inducted into possession without leave of the court. It is settled law that a tenant who claims title, right or interest in the property through the judgment-debtor or under the colour of interest through him, he is bound by the decree and that, therefore, the tenant need not eo nomine be impleaded as a party defendant to the suit nor can it be an impediment to remove obstruction put up by them to deliver possession to the decree. What is relevant is only a warning by the bailiff to deliver peaceful possession and if they cause obstruction, the bailiff is entitled to remove the obstruction; cause the construction demolished and deliver vacant possession to the decree-holder in terms of the decrees. Thus considered, we hold that the High Court and the executing court have not committed any error of law in directing demolition of shops and delivery of the possession to the decree-holder."
The learned senior counsel also referred to provisions of Order 21 Rule 36 CPC to say that only symbolic possession of suit property can be given to decree holder and not the actual physical possession. To understand this submission, it is profitable to refer to provisions of Order 21 Rule 36 which is reproduced hereunder:
"36.Decree for delivery for immovable property when in occupancy of tenant—Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property."
Thus, the protection under this provision is available only to a tenant who is entitled in law to occupy the property. However, in view of aforesaid discussion, when the Company is found to be a transferee pendenti lite, it is not entitled to occupy the property and the provisions of Order 21 Rule 36 CPC are not attracted.
The learned senior counsel for Company placed reliance upon Silverline Forum (P) Ltd. (supra). However, this judgment does not help the Company and rather supports the decree holder in view of following observations of Apex Court:
"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 an 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 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."
Thus, a transferee pendenti lite is no doubt a third party within the meaning of Order 21 Rule 101 CPC, however, once it is found that he is a transferee pendenti lite from the judgment debtor, he has no right to resist delivery of possession.
The learned counsel for appellant then relied upon this Court judgment in the case of Rajkumar (supra) to say that the executing court ought to have conducted an enquiry before rejecting the objection. A bare perusal of the facts of that case, it is gathered that the objectors were claiming to be the owner of the property and were not transferee pendenti lite. Therefore, this judgment also does not help the Company.
The judgment relied upon by counsel for respondent no.1 & 2 in the case of Krishan Gopal (supra), also supports the view taken by this Court. The Apex Court has held that the transferee pendenti lite is governed by Section 52 of Transfer of Property Act and is thus bound by the decree passed against judgment debtor.
Considering the aforesaid, the objection raised by the appellant is rightly not accepted by the trial court. The company since have taken possession of the suit land during the pendency of the first appeal, it is bound by the decree which has been passed in favour of respondent no.1 & 2.
Considering the aforesaid, this Court finds that the judgment passed by the trial court is just and proper and is based upon proper appreciation of facts and law. No interference is thus warranted in this appeal. The appeal accordingly fails and is hereby dismissed.