Revisional Court Can't Assume Jurisdiction To Reject O.21 R.97 Application When It Is Pending Before Executing Court: Allahabad HC
The Allahabad High Court has held that a revisional court cannot assume jurisdiction of an execution court and decide an application under Order XXI Rule 97 CPC, when the same is pending before the executing court. Justice Rohit Ranjan Agarwal observed that the Revisional Court exceeded its jurisdiction in rejecting an application under Order XXI Rule 97 CPC, after concluding that the issue...
The Allahabad High Court has held that a revisional court cannot assume jurisdiction of an execution court and decide an application under Order XXI Rule 97 CPC, when the same is pending before the executing court.
Justice Rohit Ranjan Agarwal observed that the Revisional Court exceeded its jurisdiction in rejecting an application under Order XXI Rule 97 CPC, after concluding that the issue of res judicata should be adjudicated first. The Court said that the revisional court should have remanded the matter to the executing/trial court to decide it as a preliminary issue, rather than dismissing the application under O21 R97.
“In case the revision was entertained by the revisional court and had found that the issue of res judicata was to be adjudicated first, it should have remanded the matter to the executing court for deciding it first. The revisional court should not have exceeded its jurisdiction and rejected the application filed under Order XXI Rule 97 CPC itself once the application was pending before the executing court.”
For context, Order XXI Rule 97 CPC relates to resistance or obstruction to possession of immovable property. The provision provides that where the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, the decree holder may make an application to the Court complaining of such resistance or obstruction.
Case Background
The brief facts of the case are that one Malti Devi, original plot owner, sold the land to one Roop Chand Jain. He divided the land into various plots and sold plot 767 to one Sushila Kumari. One Urmila Jain also purchased plots from Malti Devi, including 9 decimals of plot 776. After the death of Sushila Kumari, her land devolved to her husband and her sons. Urmila Jain subsequently filed a suit of permanent injunction against them with respect to plots 776 and 771.
The Trial Court had granted temporary injunction in favour of Urmila Jain. In the meantime, a correction deed was executed by the attorney holder of Roop Chand Jain, where plot 767 was changed to 776. Thereafter, legal heirs of Sushila Kumari filed for a permanent injunction against Urmila Jain and her relatives. Meanwhile, legal heirs of Sushila Kumari sold the plot to Santosh Awasthi, the petitioner in this case. Suit filed by Urmila Jain was decreed in her favour and appeal filed by heirs of Sushila Kumari was rejected.
Urmila Jain then filed an execution case where an impleadment application was filed by the petitioner, which was eventually dismissed on merits. The petitioner subsequently filed a suit same as heirs of Sushila Kumari.
During the pendency of the suit, the petitioner filed an application under Order XXI Rule 97 CPC before the executing court, which was objected to by Urmila Jain. The executing court framed the issue on res judicata vide order dated 16.05.2024, but did not decide it finally. This order was contested by Urmila Jain in civil revision, which was allowed by order dated 05.08.2024. In revision, the court also dismissed the petitioner's application under O21 R97 CPC. The petitioner thus challenged the revision court's order before the High Court.
High Court Verdict
The Court referred to Section 52 of the Transfer of Property Act, which prohibits the transfer of property during the pendency of a suit which would affect the rights of parties in the suit. On the provision, the Court noted that “Section 52 of The Transfer of Property Act lays down the doctrine of lis pendens. The effect of the aforesaid provision is not to annul all voluntary transfers effected by the parties to a suit but only to render it subservient to the rights of the parties thereto under the decree or order which may be made in that suit. Its effect is only to make the decree passed in the suit binding on the transferee if he happens to be third party person even if he is not a party to it.”
Here, the Court noted that in the suits filed before the Trial Court, no application was moved by the petitioner. But, it was only when Urmila Jain filed the execution case, the petitioner filed an impleadment application. It also noted that the petitioner did not file an appeal against the dismissal of the suit filed by her.
The Court observed that since the petitioner purchased the property during the pendency of the suit and never became a party to the suit or the appeal filed against the decree, the transfer was pendente lite. It held that as the transfer was pendente lite, the application under Rule 97 of Order XXI was barred.
The Court further observed that once the case was hit by Section 52 of the Transfer of Property Act, the executing Court ought to have dismissed the application under Rule 97 of Order XXI and passed order under application under Rule 102 of Order XXI, Rule 102 of Order XXI (Rules not applicable to transferee lite pendente).
"Looking to the settled legal proposition and provisions of Rule 102 once it is an admitted case that petitioner is a transferee pendente lite the executing court should not have proceeded with the application any more and at the very first instance should have decided the objections raised by decree holder in the light of the doctrine of lis pendens and Rule 102."
It also stated that the issue of res judicata, once framed by the executing Court, should have been decided at the first instance and should not have been postponed for 10 years to be decided based on evidence.
"The law is settled as far as doctrine of lis pendens is concerned, once it is admitted to a party that he has purchased the property during pendency of the suit, then such transfer is hit by provisions of Section 52 of the Transfer of Property Act. If such is the case the application under Order XXI Rule 97, at the very first instance, was not maintainable. The executing court had wrongly dragged the matter for almost 10 years from the year 2014 to 2024 in keeping the application pending filed under Order XXI Rule 97 CPC."
On the Revisional Court's order, it observed that rejecting an application under Order XXI Rule 97 CPC in a revision, when the matter was pending before the Trial Court, was incorrect.
“In the instant case the revisional court had assumed the jurisdiction of executing court and dismissed the application filed under Order XXI Rule 97, though observing that the issue of res judicata should have been decided first. The revisional court at the most could have remanded the matter with certain directions, it cannot assume the role of a executing court while exercising revisional jurisdiction, as the order dated 16.05.2024 does not fall in the category of case decided.”
Accordingly, the Court set aside the Revisional Court's order dated 05.08.2024. It also set aside the Executin
g Court's dated 16.05.2024 passed in application under Rule 97 of Order XXI and remanded the case back to the executing court for expeditious disposal of the application.
Case Title: Smt. Santosh Awasthi v. Smt. Urmila Jain [MATTERS UNDER ARTICLE 227 No. - 11807 of 2024]