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BepIn Chandra GoraIn Vs. Hem Chandra Mukherjee and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1939Cal709
AppellantBepIn Chandra Gorain
RespondentHem Chandra Mukherjee and anr.
Excerpt:
- .....of a decree, for the possession of immovable property, the decree-holder may complain under rule 97. rule 98 of order 21 provides that, when the resistance or obstruction was occasioned without any just cause, the decree-holder will be put into possession of the property. if, however, there is any just cause for the resistance or obstruction of the nature mentioned in rule 99 of order 21, the decree-holder's application is rejected. but, having regard to the provisions of rule 102, the person in possession cannot be said to have a right to be in possession if he has received the property on transfer from the judgment-debtor, after the institution of the suit in which the decree was passed. in such a case the decree, holder's application would be allowed under rule 98. the two.....
Judgment:
ORDER

Edgley, J.

1. This Rule is directed against the order of the First Munsif of Asansol, dated 27th July 1938, in which he allowed a petition filed by the Opposite party under Order 21, Rule 100, Civil P.C. The facts with which we are concerned in this case are briefly as follows: The petitioner Bepin Chandra Garai instituted a suit, Title Suit No. 1165 of 1928, in the Court of the First Munsif of Asansol for a declaration of his title and for possession of certain plots of land including plots Nos. 1044 and 1599 in Mouza Damra. The defendants in the petitioner's suit were: (1) Matilal Marwari, (2) the Maharaja of Cossimbazar and also a number of other people, Promothanath Chattoraj and others, who may be described conveniently as the Chattorajas. The petitioner obtained a decree in the trial Court in respect of plots Nos. 1044 and 1599 against Matilal Marwari and the Maharaja of Cossimbazar, but his suit was dismissed against the Chattorajas. There were subsequently appeals with regard to this matter which culminated in an appeal to this Court, which was finally decided on 5th July 1935; In spite of all these appeals however the position as regards plot Nos. 1044 and 1599 remained unaltered; The position, therefore, was that, as far as these two plots were concerned, Bepin Chandra Garai had obtained a decree only against Matilal Marwari and the Maharaja of Cossimbazar. In due course the petitioner put his decree into execution in Title Execution Case No. 20 of 1938 and obtained delivery of possession of the two above, mentioned plots on 27th March 1938. Thereupon, opposite party No. 1, Hem Chandra Mukherjee, filed a petition under Order 21, Rule 100, Civil P.C., asking that he might be restored to the possession of the two plots in question on the ground that he had purchased them in a certificate sale which had been held on 21st December 1935 at the instance of the Cossimbazar Raj Wards Estate. According to his said certificate the tenants of the plots whose right, title and interest were purchased by him were some of the Chattorajas who were defendants in the petitioner's Title Suit No. 1165 of 1928. He took possession of the said plots through the Court on 24th March 1936. The petition under Order 21, Rule 100, Civil P.C., was challenged by the petitioner on the ground that the transfer to the opposite party has taken place pendente lite and that this being the case, Order 21, Rule 102 must be regarded as a complete bar to such an application. The case was decided by the learned Munsif upon the footing that Order 21, Rule 102, Civil P.C., does not apply to involuntary alienations pendente lite.

2. It has been contended during the course of the arguments that this view is erroneous. The general provisions of the law with regard to the principle of lis pendens are contained in Section 52, T.P. Act. Having regard, however, to the terms of Section 2(d), T.P. Act, the provisions of Section 52 would not directly apply as regards the matter with which we are now dealing. At the same time, as regards transfers in the course of execution proceedings, the rule of lis pendens is expressly recognized in Order 21, Rule 102, Civil P.C. The precise effect of this rule must therefore be considered. Rule 102 is as follows:

Nothing in Rs. 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any each person.

3. During the course of the argument there was some discussion on the question whether the rule was at all applicable in the present case. In order to ascertain the precise meaning of this rule some reference is necessary to some of the preceding rules of Order 21. If there is resistance or obstruction to the execution of a decree, for the possession of immovable property, the decree-holder may complain under Rule 97. Rule 98 of Order 21 provides that, when the resistance or obstruction was occasioned without any just cause, the decree-holder will be put into possession of the property. If, however, there is any just cause for the resistance or obstruction of the nature mentioned in Rule 99 of Order 21, the decree-holder's application is rejected. But, having regard to the provisions of Rule 102, the person in possession cannot be said to have a right to be in possession if he has received the property on transfer from the judgment-debtor, after the institution of the suit in which the decree was passed. In such a case the decree, holder's application would be allowed under Rule 98. The two succeeding rules, 100 and 101, relate to applications which may be made by the person, (other than the judgment-debtor) in possession of the property which is the subject-matter of the execution proceedings. If any person in possession of such property other than the judgment-debtor is dispossessed, he may complain under Rule 100 of Order 21. If it is found that he was in possession on his own account, the Court will order him to be restored to possession, unless, in view of the provisions of Rule 102, the judgment-debtor has transferred the property to him after the institution of the suit in which a decree was passed. The terms of Rule 102 are therefore such as to exclude from the benefit of Rule 99 a transferee pendente lite from the judgment-debtor who has resisted or obstructed the execution of the decree and from the benefit of E. 101 any such transferee who has been dispossessed of the transferred property.

4. It has been argued that the words 'a person to whom the judgment-debtor has transferred the property' can only refer to a voluntary alienation on the part of a judgment-debtor and not to a transfer by a court sale or a sale under the Public Demands Recovery Act. Admittedly, the general doctrine of lis pendens under Section 52, T.P. Act, has been extended by judicial decision to involuntary alienations and I see no reason why the same principle should not apply in the case of transfers which are covered by Rule 102. The transfer of property belonging to the judgment-debtor, whether such transfer be voluntary or in-voluntary, nevertheless operates as a transfer by the judgment-debtor and, in this view of the case, I think that the language of Rule 102 is sufficiently wide to cover both kinds of alienations by a judgment-debtor. In the case with which we are now dealing it appears that the transfer of the two plots took place after the institution of the petitioner's suit and before the satisfaction of the decree. If it can be shown that these plots were transferred pendente lite by Matilal Marwari in favour of the opposite party, the petitioner would be entitled to succeed. On the facts, however, which appear from the record it has not been shown that the transfer to the opposite party by reason of the certificate sale operated in any way as a transfer by either of the judgment-debtors in respect of these two plots with which we are concerned. As already stated the tenants whose right, title and interest were transferred to the opposite party under the certificate sale were members of the Chatteraj family. The petitioner's suit had been clearly dismissed against the Chattarajas and it cannot be said that these people were in any flense judgment-debtors within the meaning of Rule 102 of Order 21. It follows, therefore, that Rule 102 of Order 21 can have no application to the facts of this case and the opposite party is, therefore, entitled to be put into possession of the property under Rule 101 of Order 21. I arrive therefore, at the same conclusion as the learned Munsif although I do not agree with the line of reasoning -which has been adopted by him. The rule is accordingly discharged with costs, the hearing, fee being assessed at four gold maohurs.


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