Order 21 Rule 35 CPC | Deletion from Suit Does Not Bar Execution Against Purchaser Pendente Lite : Bombay HC

A pivotal clarification has emerged from the Bombay High Court on the enforceability of decrees against purchasers pendente lite who are later deleted from suits. The judgment affirms that such purchasers remain bound by the decree despite their removal from the array of defendants, provided the transfer occurred during litigation and the doctrine of lis pendens applies. This ruling reinforces the protection of decree-holders against collusive transfers and clarifies the distinction between deletion and abandonment under the Civil Procedure Code.

Background & Facts

The Dispute

The dispute centers on the enforceability of a decree for possession against a purchaser who acquired property during the pendency of a suit, but was later deleted as a defendant under Order 1 Rule 10 of the Code of Civil Procedure, 1908. The petitioner, Kashinath Ramji Shinde (deceased, represented by his legal representatives), purchased a residential property in Aurangabad on 06.09.1976. Respondents 1 and 2, who later claimed ownership, entered their names in the city survey records and obtained construction permissions from the Municipal Corporation. They also sold portions of the property to Respondents 5, 6, 7, and others.

Key Facts

• The petitioner filed Regular Civil Suit No. 435 of 1987 seeking possession, declaration, and mesne profits against Respondents 1 and 2.
• The suit was renumbered multiple times: first as Special Civil Suit No. 277 of 1998, then as Regular Civil Suit No. 777 of 2002.
• During the pendency of the suit, Respondent No. 7 purchased a portion of the suit property from Respondent No. 2 on an undisclosed date, without court permission.
• Respondent No. 7 was added as Defendant No. 11 in the suit at the fag end of the trial, after evidence had closed.
• Respondent No. 7 applied to cross-examine the petitioner, which was allowed by the Trial Court on 27.01.2005.
• The petitioner challenged this order in Writ Petition No. 1653 of 2005, which was withdrawn on 30.03.2005 with liberty to seek deletion of Respondent No. 7 under Order 1 Rule 10 CPC.
• The petitioner filed Application Exh. 236 on 28.09.2005 seeking deletion of Respondent No. 7. The Trial Court erroneously treated it as a withdrawal of suit against Respondent No. 7.
• The petitioner challenged this order in Writ Petition No. 8020 of 2006. The Bombay High Court, by order dated 09.01.2007, quashed both the deletion order and the review order, directing the Trial Court to reconsider the deletion application strictly under Order 1 Rule 10 CPC.
• On 24.09.2007, the Trial Court correctly deleted Respondent No. 7 as Defendant No. 11 under Order 1 Rule 10 CPC, without treating it as a withdrawal.
• The trial court dismissed the petitioner’s suit on 27.10.2009. The petitioner appealed, and the District Court, Aurangabad, allowed the appeal by judgment dated 02.01.2013, decreeing the suit for possession.
• Execution proceedings were initiated under Order 21 Rule 35 CPC as Regular Darkhast No. 08 of 2013.
• On 16.11.2019, execution proceedings were withdrawn against other judgment debtors who had purchased from Respondent No. 2.
• On 19.08.2024, the Executing Court rejected the petitioner’s application (Exh. 145-D) seeking possession against Respondent No. 7, holding that deletion from the suit rendered him a third party not bound by the decree.

Procedural History

• 06.09.1976: Petitioner purchased property via registered sale deed.
• 1987: Petitioner files Civil Suit No. 435 of 1987.
• 27.01.2005: Trial Court allows Respondent No. 7 to cross-examine petitioner.
• 30.03.2005: Bombay High Court allows withdrawal of Writ Petition No. 1653 of 2005 with liberty to seek deletion.
• 28.09.2005: Trial Court erroneously treats deletion as withdrawal of suit.
• 09.01.2007: Bombay High Court quashes 28.09.2005 and review orders, directs reconsideration under Order 1 Rule 10 CPC.
• 24.09.2007: Trial Court correctly deletes Respondent No. 7 under Order 1 Rule 10 CPC.
• 27.10.2009: Trial Court dismisses petitioner’s suit.
• 02.01.2013: District Court allows appeal and decrees suit for possession.
• 08.02.2013: Execution proceedings initiated as Regular Darkhast No. 08 of 2013.
• 16.11.2019: Execution withdrawn against other judgment debtors.
• 19.08.2024: Executing Court rejects application against Respondent No. 7.
• 20.04.2026: Bombay High Court delivers judgment.

The Parties' Positions

Petitioner’s Position: The deletion of Respondent No. 7 under Order 1 Rule 10 CPC was procedural and did not constitute abandonment of claim. As a purchaser pendente lite, Respondent No. 7 is bound by the decree under Section 52 of the Transfer of Property Act and Section 146 of the CPC. The decree against Respondent No. 2 is enforceable against him.

Respondent No. 7’s Position: Deletion from the suit extinguished all claims against him. He is a third party not party to the decree, and the decree cannot be executed against him. The petitioner’s application is belated and filed in collusion with other judgment debtors.

Relief Sought

The petitioner sought quashing of the Executing Court’s order dated 19.08.2024, and directions to enforce the decree for possession against Respondent No. 7 under Order 21 Rule 35 CPC.

The Legal Issue

Can a purchaser pendente lite, whose name is deleted from a suit under Order 1 Rule 10 of the CPC, be considered a person bound by the decree under Order 21 Rule 35 of the CPC, when the transfer occurred during litigation and the decree is against his vendor?

Arguments Presented

For the Petitioner

The petitioner’s counsel, Mr. R.F. Totla, argued that deletion under Order 1 Rule 10 CPC is a procedural correction for improper joinder and does not equate to abandonment under Order 23 Rule 1 CPC. He relied on Raj Kumar v. Sardari Lal (2004) 2 SCC 601, Dhanna Singh v. Baljinder Kaur (1997) 5 SCC 476, and Ved Kumari v. Municipal Corporation of Delhi (2023) 13 SCC 651 to establish that a transferee pendente lite is bound by the decree regardless of deletion. He emphasized that Section 52 of the Transfer of Property Act and Section 146 of the CPC protect the decree-holder’s rights against transferees claiming through the judgment debtor.

For the Respondent

Mr. P.V. Mandlik, Senior Advocate, contended that deletion of Respondent No. 7 from the suit amounted to abandonment of claim, rendering him a stranger to the decree. He argued that the petitioner acted with unclean hands by selectively withdrawing execution against other transferees while targeting Respondent No. 7. He asserted that since Respondent No. 7 was not a party to the appeal or decree, execution against him was impermissible. He relied on the Executing Court’s finding that deletion equated to withdrawal, and cited no precedent to support his position.

The Court's Analysis

The Court undertook a meticulous analysis of the distinction between deletion under Order 1 Rule 10 CPC and withdrawal under Order 23 Rule 1 CPC. It held that Order 1 Rule 10(2) empowers the court to remove a party whose presence is improper, without extinguishing substantive rights. In contrast, Order 23 Rule 1 requires explicit abandonment of a claim, which involves a conscious decision to relinquish rights.

"The term ‘improper’ in the context of Order 1 Rule 10 of the C.P. Code of 1908 means ‘not suitable or required for the situation’. Order 1 Rule 10 of the C.P. Code of 1908 is usually invoked in a Suit whereby: (i) Court may add or delete any party in the Suit; (ii) Plaintiff as also Defendant may file an application for addition or deletion of a party; and (iii) A third party may apply to the Court for its addition in the Suit. This is apropos the situation and the circumstances of each case. In no terms it bespeaks of perpetual forfeiture or waiver of a party’s claim against another party in respect of the subject matter of the suit."

The Court emphasized that the earlier erroneous order dated 28.09.2005, which treated deletion as withdrawal, had been quashed by this Court in 2007. The Executing Court’s reliance on that quashed order was legally unsustainable.

The Court then examined Section 52 of the Transfer of Property Act, 1882, which prohibits transfer of property during litigation if it affects the rights of any party to the suit. The Court held that Respondent No. 7, as a purchaser pendente lite, acquired no better title than his vendor, Respondent No. 2, and was bound by the decree.

"No other words are needed to hold that status and right of the Respondent no.7 is seriously affected by Section 52 of the Transfer of Property Act 1882."

The Court further invoked Section 146 of the CPC, which permits execution against a person claiming under a judgment debtor. Since Respondent No. 7 admitted to claiming through Respondent No. 2, he fell squarely within this provision.

The Court also relied on Ved Kumari v. Municipal Corporation of Delhi, where the Supreme Court held that executing courts cannot dismiss execution petitions merely because possession has been handed over to a third party. The Court observed:

"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."

The Court rejected the argument of collusion or delay, noting that the petitioner had disclosed all proceedings and that no evidence supported the allegation of suppression.

The Verdict

The petitioner succeeded. The Bombay High Court quashed and set aside the Executing Court’s order dated 19.08.2024. The application under Exh. 145-D was allowed. The Executing Court was directed to proceed with the execution of the decree for possession against Respondent No. 7 in accordance with law. The Court further directed the Executing Court to conclude the execution proceedings within six months from the date of judgment.

What This Means For Similar Cases

Deletion Is Not Abandonment

• Practitioners must distinguish between deletion under Order 1 Rule 10 CPC and withdrawal under Order 23 Rule 1 CPC. Deletion does not extinguish substantive rights.
• A decree-holder may still execute against a deleted defendant if the transfer occurred during litigation and the transferee claims through the judgment debtor.

Lis Pendens Protects Decree-Holders

• Any transfer of property during pendency of a suit for possession is void against the decree-holder under Section 52 of the Transfer of Property Act.
• Subsequent purchasers, even if not parties to the suit, are bound by the decree if they claim through the judgment debtor.

Execution Courts Must Apply Section 146 CPC

• Execution courts must examine whether the person resisting possession claims under the judgment debtor.

• Mere non-joinder or deletion from the suit does not immunize a transferee from execution if Section 146 and Section 52 apply.

• Always plead Section 52 TPA and Section 146 CPC in execution applications against transferees.

• Do not assume deletion from the suit bars execution - verify the timing of transfer and nature of claim.

• Challenge erroneous orders treating deletion as withdrawal by filing writ petitions under Article 227.