IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE. Date of Reserve: Date of Order: CRP No.

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE Date of Reserve: Date of Order: CRP No.34/2005 Shriram Housing Finance and Investment of India Ltd. Through: Mr.Gaurav Gupta, Advocate...Petitioner Versus Yogesh Mishra and others... Respondents Through: Ms.Bhawna Chopra Rustagi, Advocate JUSTICE SHIV NARAYAN DHINGRA ORDER: The petitioner is aggrieved by orders dated and whereby an application of the petitioner under Order 21 Rule 58 CPC was dismissed and a review against the order dismissing application was also dismissed by the learned executing court. 2. The brief facts relevant for the purposes of deciding this petition are that one N.D. Mishra filed a suit against Nisha Chauhan in 1994 for possession, recovery of rent, damages and mesne profits. During pendency of suit Mr.Mishra died on and his sons and daughters, namely, Mr.Yogesh Mishra, Mr.Raj Mishra, Ms.Dheera, Ms.Neena Bhardwaj and Ms.Meena Sharma were brought on record. Thereafter an application under Order 1 Rule 10 CPC was made by Umesh Mishra Memorial Charitable

2 Trust seeking impleadment as a co- plaintiff in the suit on the basis of a Will executed by late N.D. Mishra bequeathing 75% share in the suit property in favour of the Trust and 25% share in the name of LRs namely Neena Bhardwaj and Meena Sharma. This application of Trust was not opposed by the LRs of the deceased including Yogesh Mishra, who were already on record. Respondent No.6 herein, Umesh Mishra Memorial Charitable Trust was thus impleaded as co-plaintiff. Will dated was placed on record of the trial Court and thereafter this Will was proved by the witnesses as Ex.PW4/10. A decree dated for possession as well as a decree for mesne profits and Rs.30,000/- per month w.e.f in respect of property No.27, Ishwar Nagar, New Delhi on land measuring 500 sq. yds. was passed against Ms.Nisha Chauhan alias Nisha Sahai by the trial Court. During execution of this decree, petitioner made an application under Order 21 Rule 58 alleging therein that he had purchased the property subject matter of decree from Yogesh Mishra on through registered sale deed on the basis of a Will dated executed by late Mr.N.D. Mishra in favour of Yogesh Mishra. The vacant possession of the property was handed over by JD Nisha Chauhan to Yogesh Mishra who further handed it over to the applicant. It was submitted that the applicant shall suffer irreparable loss and injury since the applicant had already paid entire sale consideration and was in possession of the property. 3. This application was opposed by the respondents, except Yogesh Mishra, and the trial Court dismissed the application observing that Umesh Mishra Memorial Charitable Trust was one of the decree holders. Umesh Mishra Memorial Charitable Trust was having 75% share in the property while Yogesh Mishra was having no right in the property as per the Will. Yogesh Mishra had no right to transfer the right or title of the suit property to any one. The decree dated was not challenged by Yogesh Mishra neither the order impleading Umesh Mishra Memorial Charitable Trust was challenged, the decree thus became final. The transfer of property by Yogesh Mishra in favour of applicant cannot stand in the way of execution of the decree. A review application against this order was also dismissed. 4. The learned counsel for the applicant has stated that respondent No.6 could not have filed an execution against JD as it was not a decree holder as per the judgment and decree. The execution petition has become infructuous as JD had vacated the property in favour of one of the co-owners and the decree stood discharged and executed. Will dated in favour of Yogesh Mishra was subsequent to the Will dated as propounded by

3 respondent No.6. Therefore, no reliance could be placed on this Will. It is submitted that since there was a serious dispute in regard to the title of the property among the co- owners, no order for possession could be passed against the present petitioner in favour of the Trust, respondent No.6, since the petitioner's rights are still to be adjudicated as the petitioner is a bona fide purchaser for valuable consideration. 5. It is also submitted by learned counsel for the petitioner that the executing court could not have decided the objections without recording evidence in a summary manner and the order of the court below therefore, was liable to be set aside. Petitioner relied upon Canara Bank vs. Gurmukh Singh and Ors, 1999 (51) DRJ 491 and Manoj Kumar Shah vs. Anand Kumar and another, 2007 (97) DRJ It settled law that an executing court cannot go behind the decree or beyond the decree. Objections under Order 21 Rule 58 can be entertained only if the applicant is covered under the provisions of Order 21 Rule 58 which reads as under:- Adjudication of claims to, or objections to attachment of property-- (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained: Provided that no such claim or objection shall be entertained-- (a) where, before the claim is preferred or objection is made, the property attached has already been sold; or (b) where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. (3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination,--- (a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or (b) disallow the claim or objection; or (c) continue the attachment subject to any mortgage, charge of other interest in favour of any person; or (d) pass such order as in the circumstances of the case it deems fit. (4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. (5) Where a

4 claim or an objection is preferred and the Court, under the proviso to subrule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive. 7. It is clear that Order 21 Rule 58 CPC is applicable only where the Court attaches any property in execution of a decree. Obviously the attachment has to be in execution of a money decree. The objector can raise objection that the property was not liable to be attached and the Court then can adjudicate upon he claim or objection of the objector regarding attachment of the property. Where the property in question has been subject matter of the suit and a decree is passed for possession of the property, the question of attachment of the property does not arise and any person who is subsequent purchaser of the property during pendency of the lis or during pendency of the execution, is govered by section 52 of Transfer of property Act which reads as under:- Transfer of property pending suit relating thereto. 52. 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. 8. It is settled law that if the property has been sold during pendency of the litigation or pendency of execution, the principle of lis pendence would apply. Recently the Supreme Court in Amit Kumar Shaw and another vs. Farida Khatoon and another, (2005) 11 SC 403 laid down the applicability of this section in detail as under:- Section 52 of the Transfer of Property Act is an expression of the principle pending a litigation nothing new should be

5 introduced. It provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his appointment. This section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the pendency of the suit. In order to constitute a lis pendens, the following elements must be present: 1.There must be a suit or proceeding pending in a court of competent jurisdiction. 2.The suit or proceeding must not be collusive. 3.The litigation must be one in which right to immovable property is directly and specifically in question. 4.There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. 5.Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceeding where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case. 9. Since the applicant in the present case had purchased this property after passing of decree by a competent court if he has any claim, he will have to establish this by filing an independent suit. The decree holders cannot be deprived of the fruits of the decree on the basis of fraudulent transactions by one of the LRs of the deceased. In this case Yogesh Mishra, who allegedly sold the property on the basis of a Will was one of the party to the suit as an LR of deceased N.D. Mishra. Will dated was relied upon by respondent No.6 in his presence. The Will categorically stated that Yogesh

6 Mishra would have no share in this property. He did not object to this Will or respondent No.6 being impleaded as a party; neither the order impleading respondent No.6 on the basis of this Will was challenged. Yogesh Mishra did not file any probate petition for probation of the subsequent Will allegedly in his possession. It is obvious that in order to defeat the claim of the respondent No.6 and others, some documents seems to have been forged by Yogesh Mishra on the basis of which he transferred the property to the applicant. None of the decree holder except Yogesh Mishra is bound by this transfer. Yogesh Mishra since had no share in the property as per the Will brought on the record of the Court, he had no right to take possession of the property from the JD and had no right to sell the property. No application for satisfaction of decree was filed in the Court by Yogesh Mishra or by the JD. The entire deal seems to be fishy. The application under Order 21 Rule 58 CPC was not maintainable. The trial Court rightly dismissed the application and the review application. 10. I find no force in the petition. The petition is hereby dismissed. SHIV NARAYAN DHINGRA, J.