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Judgment
The petitioners impugn order dated 04.07.2025 passed by District Judge-1, Hingoli below Exhibit 5 in Regular Civil Appeal No. 28 of 2025, whereby petitioner's application seeking stay to proceedings in Regular Darkhast No. 40 of 2002 came to be rejected.
Respondent Nos.1 and 2 had instituted Regular Civil Suit No. 80 of 1986 seeking relief of declaration of ownership and possession in respect of land Gut No.97, admeasuring 27 Acres 36 Gunthas. They had assailed transactions entered into by defendant Nos. 1 to 5. During pendency of suit, petitioner no.1 purchased 2H 39R land out of Gut No.97 from original defendant Nos. 1 to 5 under a registered sale deed. On 21.06.1991, Trial Court decreed suit and declared respondent Nos.1 and 2 to be owners of Gut No. 97, admeasuring 27 Acres 36 Gunthas including the land which is purchased by petitioners. Although, original defendant Nos. 1 to 5 preferred an appeal against the decree of Trial Court, they entered into a compromise and retained 13 Acres 6 Gunthas of land themselves, leaving the remaining land to respondent Nos. 1 and 2.
In light of modified decree, respondent nos. 1 and 2 filed Regular Darkhast No.40 of 2002 seeking possession of suit property. The petitioners filed objections to the executability of decree. The Executing Court rejected their objections, whereupon they filed Regular Civil Appeal No. 28 of 2025 before District Court along with an application below Exhibit 5 seeking stay to execution proceedings. The Appellate Court declined to entertain petitioners’ prayers. Hence, present writ petition.
Mr. D. M. Shinde, learned Advocate appearing for petitioners submits that Executing Court was under an obligation to consider all the objections to executability of decree raised on behalf of petitioners. However, Executing Court declined to consider the same. The petitioners have therefore filed Regular Civil Appeal No. 28 of 2025 before District Judge, which is pending for consideration, however, learned District Judge rejected petitioners prayer for stay to proceedings in Regular Darkhast. He would submit that, as long as petitioner's rights are not decided by Appellate Court, it is expedient to stay the execution proceedings. In support of his contentions, he relies on decision of Hon’ble Supreme Court in case of Asma Lateef & Anr. v. Shabbir Ahmad and Others, reported in 2024 AIR (SC) 602.
Per contra, Mr. Jangada, learned Advocate appearing for respondents – decree holders submits that decree holders are waiting for fruits of decree since long. The petitioners being a pendente lite purchaser do not have any right to obstruct the execution of decree. The Executing Court has passed a well-reasoned order after considering all contentions raised by petitioners. Even Appellate Court recorded adequate reasons while refusing to entertain application for stay to execution of decree.
Having considered submissions advanced by learned Advocates appearing for respective parties, this Court finds that the substantive appeal filed by petitioners against order of Executing Court is pending before District Judge. The petitioners have moved an application for stay to proceedings in execution during pendency of appeal. The Appellate Court observed that, on prima facie consideration of reasoning adopted by Executing Court, the petitioners cannot claim any independent right to obstruct the execution proceedings. Eventually, declined to entertain prayers for stay.
This Court finds that admittedly respondent nos.1 and 2 had instituted Regular Civil Suit No. 80 of 1986 for declaration of ownership and possession of suit property. The suit property originally owned by father of respondent Nos.1 and 2. On his death, defendants, who are their cousins, started dealing with property by asserting their rights while defying rights of respondent Nos.1 and 2.
During pendency of suit, petitioners purchased a portion of suit property. Apparently, they are claiming their right through defendant nos.1 to 5. The Trial Court decreed suit holding that respondent Nos.1 and 2 were the exclusive owners of land Gut No.97 and defendant Nos. 1 to 5 had no authority to deal with the same.
In the light of aforesaid backdrop, this Court finds that once petitioners are held to be a pendente lite purchaser, the rigours of Section 52 of Transfer of Property Act will have to be given effect. Rule 102 of Order XXI of Code of Civil Procedure also takes into account such a situation and refuses to extend a helping hand to a purchaser of property in respect of which litigation is pending. It would be unfair and inequitable to protect a transferee pendente lite, as any such protection may frustrate the decree-holder from realizing the fruits of decree. Resistance from such a transferee is therefore nullified in light of operation of Section 52 of the Transfer of Property Act read with Rule 102 of Order XXI of the Code of Civil Procedure. In case of Usha Sinha v. Dina Ram and Ors., reported in (2008) 7 SCC 144, the Hon'ble Supreme Court observed that the Court must give due weight to intention of the statute in order to give effect to its provisions. Looking to Section 52 of the Transfer of Property Act and Rule 102 of Order XXI of the Code of Civil Procedure, the intention of Parliament with which the statute has been enacted is that the rights of one of the parties to the proceedings pending before the Court cannot be prejudiced, taken away, or adversely affected by the actions of the other parties to the same proceedings.
Further, in case of Silverline Forum Pvt. Ltd. v. Rajiv Trust and Ors., reported in (1998) 3 SCC 723, the Hon'ble Supreme Court observed that a transferee pendente lite can seek adjudication only on the question whether he is a transferee during the pendency of the suit in which the decree was passed. Once the finding is in affirmative, the Executing Court must hold that he had no right to resist, and such person cannot seek protection from Executing Court.
In light of aforesaid exposition of law, this Court finds that Appellate Court was justified in rejecting petitioner's application for grant of stay to execution proceedings.
Needless to state here that, rights of parties would be subject to final outcome of appeal.
In peculiar facts of present case, Appellate Court shall endeavour to decide appeal expeditiously and, in any case, within a period of six months from today.
Writ Petition stands dismissed in aforesaid terms.