# Smt. Santosh Awasthi v. Smt. Urmila Jain

- **Citation:** (2025) 3 ILRA 116
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-11
- **Case number:** Matters Under Article 227 No. 11807 of 2024
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-santosh-awasthi-v-smt-urmila-jain-53037
- **Pages:** 11

## Headnote

Civil Law-The Constitution of India,1950Artcle 227 - The Code of Civil Procedure,
1908-Section 115, Order 21 Rule 97,102 -
The Transfer of Property Act-1882-Section
52-
Revisional
court
had
exceeded
its
jurisdiction by dismissing the application filed
under Order XXI Rule 97 by the petitioner
before the executing court while exercising
revisional jurisdiction under Section 115 CPC---
The executing court has also failed in its
endeavour to decide the execution case
pending before it since the year 2014, and
after framing the issue of res judicata had
postponed the matter to be decided at the
final stage--- Where it is an admitted fact that
the property was transferred during pendency
of the suit and petitioner is a transferee
pendente lite and hit by provisions of Section
52 of the Transfer of Property Act, the
executing court should have, at the very
outset, proceeded to pass the order in
pursuance of Rule 102--- Matter is remanded
to the executing court to pass necessary
orders on the application moved under Order
XXI Rule 97 CPC in accordance with law
within a period of one month. (Para 34, 35
& 37)

Petition disposed of. (E-15)

List of Cases cited:

## Text

116 INDIAN LAW REPORTS ALLAHABAD SERIES
 1. This correction/modification
application has been moved on behalf of
respondent nos. 14, 15 and 16 seeking
correction/modification of judgment and
order dated 21.03.2025 to the extent that
District Judge, Mathura, shall get an
inventory of all movable and immovable
properties including cash, bank accounts,
ornaments etc. prepared immediately and a
report is submitted by officiating Receiver,
Kunwar
Pal
Singh
Tomar
before
Committee of Management is constituted.

2. In view of said fact, judgment
and order dated 21.03.2025 is modified to
the extent that after Paragraph No. 64,
following paragraphs are added:-

"65. The District Judge, Mathura,
is hereby requested to get the complete
inventory prepared of all movable and
immovable properties of Dauji Temple,
including cash, bank accounts, ornaments
etc. immediately, within a period of two
days from today. When the management is
handed
over
to
newly
constituted
Committee of Management, the inventory
so prepared shall also be passed on.
 66.
Further,
Registrar
(Compliance)
is
hereby
directed
to
communicate this order along with earlier
judgment and order dated 21.03.2025 to
District Judge, Mathura, within 24 hours,
for necessary compliance."

3.
The
correction/modification
application stands disposed of.
----------
(2025) 3 ILRA 116
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2025

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.
Matters Under Article 227 No. 11807 of 2024

Smt. Santosh Awasthi ...Petitioner
Versus
Smt. Urmila Jain ...Respondent

Counsel for the Petitioner:
Rama Goel Bansal, Shalini Goel

Counsel for the Respondent:
Arvind Srivastava

Civil Law-The Constitution of India,1950Artcle 227 - The Code of Civil Procedure,
1908-Section 115, Order 21 Rule 97,102 -
The Transfer of Property Act-1882-Section
52-
Revisional
court
had
exceeded
its
jurisdiction by dismissing the application filed
under Order XXI Rule 97 by the petitioner
before the executing court while exercising
revisional jurisdiction under Section 115 CPC---
The executing court has also failed in its
endeavour to decide the execution case
pending before it since the year 2014, and
after framing the issue of res judicata had
postponed the matter to be decided at the
final stage--- Where it is an admitted fact that
the property was transferred during pendency
of the suit and petitioner is a transferee
pendente lite and hit by provisions of Section
52 of the Transfer of Property Act, the
executing court should have, at the very
outset, proceeded to pass the order in
pursuance of Rule 102--- Matter is remanded
to the executing court to pass necessary
orders on the application moved under Order
XXI Rule 97 CPC in accordance with law
within a period of one month. (Para 34, 35
& 37)

Petition disposed of. (E-15)

List of Cases cited:

1. Siddamsetty Infra Projects Pvt. Ltd. Vs Katta
Sujatha Reddy & ors., 2024 SCC OnLine SC
3214

2. Shingara Singh Vs Daljit Singh & anr., 2024
SCC OnLine SC 2823

3. Usha Sinha Vs Dina Ram 2008 (7) SCC 144
3 All. Smt. Santosh Awasthi Vs. Smt. Urmila Jain
117
4. Sriram Housing Finance and Investment Vs
Omesh Misra Memorial Charitable Trust 2024
(15) SCC 176

5. Silverline Forum Pvt. Ltd. Vs Rajiv Trust &
anr.(1998) 3 SCC 723

6. Surya Dev Rai Vs Ram Chander Rai 2003 (6)
SCC 675

7. Radhey Shyam & anr. Vs Chhabi Nath & ors.
2009 (5) SCC 616

8. Periyammal Vs V. Rajamani, Civil Appeal No.
3640-3642 of 2025

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. Heard Ms. Rama Goel Bansal,
learned counsel for petitioner and Sri
Arvind Srivastava, learned counsel for
respondents.

2. This writ petition under Article
227 of Constitution of India has been filed
assailing the order dated 05.08.2024 passed
by Additional District Judge, Court No. 1,
Jhansi in Civil Revision No. 59 of 2024.

3. Facts, in brief, leading to filing of
present petition are that one Malti Devi was
the original owner of property in question.
She had sold 1.8 Acres of land to one Roop
Chand Jain, which includes the property in
dispute. On 03.12.1976 Roop Chand Jain
carved out different plots from the property
purchased by him and sold one part to one
Sushila Kumari, wife of Ram Narayan. In the
sale deed plot number was mentioned as
'767'.

4. Similarly, on 20.05.1979 Urmila
Jain purchased an area of 9 decimal of plot
no. 776 from Malti Devi. She also purchased
plot nos. 771, 770, 772, 773, 774, 775, 768
and 766 total measuring 2.5 Acres. Sushila
Kumari expired some time in the year 1986,
she was survived by her husband Ram
Narayan Verma and sons Naveen Prakash,
Anand Prakash, Ratnesh Verma and Rajesh
Verma. Urmila Jain filed a suit for permanent
injunction
on
28.01.1991
which
was
registered as Suit No. 33 of 1991 against Ram
Narayan and his sons in respect of plot no.
776 and 771. On 30.01.1991 Ram Narayan
filed an affidavit that Smt. Sushila Kumari
had purchased part of plot no. 767 measuring
25 x 50 feet and 25 x 50 feet. The trial court
had granted temporary injunction in favour of
Urmila Jain and restrained the defendants
from interfering in peaceful possession of
plaintiff in respect of plot no. 776 and 771.

5. On 21.01.1991 a correction
deed/titimma was executed by Power of
Attorney holder of Roop Chand Jain in
favour of Ram Narayan and plot no. 767 was
changed to 776. On 16.04.1991 Ram
Narayan alongwith his sons filed Suit No.
151 of 1991 for relief of permanent
injunction against Prakash Chand Jain,
Kailash Chand Jain and Urmila Jain in
respect of plot no. 21, 22 and over plot no.
776. An application for grant of temporary
injunction was moved which was rejected by
the trial court, against which a miscellaneous
appeal was preferred by Ram Narayan which
was dismissed on 17.05.2000. Both, the
Original Suit No. 33 of 1991 and 151 of 1991
were clubbed together. During pendency of
both the suits, Ram Narayan executed a sale
deed in respect of property in dispute in both
the suits to one Smt. Santosh Awasthi on
12.01.2001. Smt. Santosh Awasthi got map
sanctioned
from
Jhansi
Development
Authority on 23.01.2002.

6. Original Suit No. 33 of 1991
filed by Urmila Jain was decreed on
14.10.2003, while the suit filed by Ram
Narayan being Suit No. 151 of 1991 was
118 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissed. Ram Narayan filed Civil Appeal
No. 96 of 2003 against the judgment dated
14.10.2003. The said appeal was dismissed
on 13.04.2010. Urmila Jain on 16.12.2010
filed Execution Case No. 40 of 2010, in the
said execution case Smt. Santosh Awasthi
filed an impleadment application on
17.01.2011. The said application was
dismissed in default on 04.08.2012, a recall
application was moved which was again
dismissed on 18.09.2013. Another recall
application was moved on 19.10.2013 to
recall the order dated 18.09.2013 which
was rejected on merits on 22.01.2014.

7.
Petitioner,
Smt.
Santosh
Awasthi, on 21.07.2010 instituted Suit No.
341 of 2010 for the same relief for which
Suit No. 151 of 1991 was filed by Ram
Narayan. The said suit was dismissed on
20.09.2022. During pendency of Suit No.
341 of 2010 petitioner Smt. Santosh
Awasthi filed application under Order XXI
Rule 97 CPC which was registered as Misc.
Case No. 6 of 2014. The said application
was contested by Urmila Jain, who filed
her
objections
on
the
ground
of
maintainability of the same. On 16.05.2024
trial court framed issue in regard to res
judicata but observed that the issue of res
judicata will be decided at the final stage
after completing all the evidences of
parties. Aggrieved by the said order, Civil
Revision No. 59 of 2024 was filed by
Urmila Jain which has been allowed by the
order impugned dated 05.08.2024. Hence,
this writ petition.

8. Learned counsel for petitioner
submits that scope of Section 115 CPC is
very limited and the court can only view the
order impugned within the parameters given
under Section 115 CPC. Revisional power is
not akin to appellate court. According to her,
the revisional court had not only set aside the
order passed by the trial court but had
travelled beyond its jurisdiction and had
rejected the application filed under Order
XXI Rule 97 CPC. She then contended that
from perusal of the order impugned it
transpires that court was of the opinion that
the issue of res judicata should be decided by
trial court as a preliminary issue and
revisional court should have remanded the
matter to trial court to decide it as a
preliminary issue but it committed the
mistake and instead dismissed the application
filed under Order XXI Rule 97 as well as
Rule 101 read with Section 151 CPC.

9. According to her, the right of
petitioner should have been adjudicated by
execution court itself as petitioner is a lawful
owner of property in question since the year
2002 and in garb of decree of Original Suit
No. 33 of 1991 the application has been
rejected and matter has not been adjudicated
by the courts till date. It was further
contended that the correction deed/titimma
was executed in favour of original holder of
the land who has transferred the same to the
petitioner who is a bonafide purchaser and,
thus, the executing court should have heard
her before the application was being
dismissed. She has relied upon the various
judgments of Apex Court rendered in cases
Hindustan Petroleum Corporation vs.
Dilbahar Singh (2014) 9 SCC 78, Jhau Lal
& another vs. Mohan Lal & others, AIR
Online 2013 SC 498, Tmt. Kasthuri
Radhakrishnan & others vs. M. Chinniyan
and another AIR 2016 SC 609 and Jini
Dhanrajgir & another vs. Shibu Mathew
& another etc., Civil Appeal No. 37583796/2023 arising out of SLP(C) Nos.
28258-28296/20181, decided on 16.05.2023.

10. Sri Arvind Srivastava, learned
counsel for respondents, submitted that the
sale deed was executed by original owner
3 All. Smt. Santosh Awasthi Vs. Smt. Urmila Jain
119
Roop Chand Jain in favour of Smt. Sushila
Kumari in respect of plot no. 767 and not
776. An affidavit was filed in Original Suit
No. 33 of 1991 by Ram Narayan admitting
that he has no concern with plot no. 776. It
was after institution of Original Suit No. 33
of 1991 that a correction deed/titimma was
executed by the alleged Power of Attorney
holder of Roop Chand Jain in respect of
land sold in favour of Sushila Kumari and
number was corrected from 767 to 776. He
then contended that Ram Narayan had also
filed a suit in the year 1991 against the
answering respondent and both the suits
were clubbed together and was finally
decided in the year 2003 and suit filed by
respondent was decreed while the suit filed
by Ram Narayan was dismissed. It was
during pendency of the suit that the suit
property was transferred by Ram Narayan
in favour of petitioner and, thus, it is hit by
Section 52 of the Transfer of Property Act
and lis pendens will apply.

11. He further contended that
petitioner who had purchased the property
in the year 2001 was well aware of the
pendency of the suit and did not choose to
file any appeal against the judgment
rendered in the year 2003 decreeing the suit
in favour of answering respondent. The
appeal was preferred by Ram Narayan
which was ultimately dismissed in the year
2010 against which no second appeal was
preferred and the judgment became final.
Further, petitioner herself instituted the Suit
No. 341 of 2010 against the respondent
claiming same relief which was there in
Suit No. 151 of 1991 which was dismissed
on 20.09.2022, against which no appeal till
date has been preferred and it has become
final between the parties inter se. It was
also contended that during pendency of the
suit of the year 2010 petitioner had moved
an impleadment application in execution
proceedings which was dismissed twice
and, thereafter, in the year 2014 application
under Order XXI Rule 97 CPC was filed.

12. According to learned counsel,
the application filed under Order XXI Rule
97 CPC is not maintainable as it is barred
by principle of Order IX Rule 9 CPC as no
fresh suit can be filed after dismissal of
Suit No. 341 of 2010. Further, after
dismissal of Suit No. 151 of 1991 filed by
Ram Narayan, an application under Order
XXI Rule 97 CPC was filed by petitioner
which is barred by principle of res judicata
as it has been moved by transferee
pendente lite which is not maintainable. It
is also contended that the application under
Order XXI Rule 97 CPC is barred by Order
XXI Rule 102 CPC as it has been moved
by transferee pendente lite. He lastly
contended that the order passed by the trial
court
on
16.05.2024
was
not
an
interlocutory order and same is a final order
which has been rightly interfered by the
revisional court. He has relied upon the
judgment of Apex Court rendered in cases
of Shalini Shyam Shetty & another vs.
Rajendra Shankar Patil (2010) 8 SCC
329, Roshan Deen vs. Preeti Lal (2002) 1
SCC 100, Radhey Shyam & another vs.
Chhabi Nath & others (2009) 5 SCC 616,
State of West Bengal & others vs. Samar
Kumar Sarkar (2009) 15 SCC 444,
Gadde
Venkateswara
Rao
vs.
Government of A.P. and others (1965)
Supreme Today 247, Sadhana Lodh vs.
National Insurance Co. Ltd. & another
(2003) 3 SCC 524, Waryam Singh &
another vs. Amarnath & another (1954)
AIR SC 215, Ouseph Mathai & others
vs. M. Abdul Khadir (2001) 8 Supreme
262, Mohd. Inam vs. Sanjay Kumar
Singhal & others (2020) 0 Supreme (SC)
423, Usha Sinha vs. Dina Ram & others
(2008) 7 SCC 144, Shingara Singh vs.
120 INDIAN LAW REPORTS ALLAHABAD SERIES
Daljit Singh & another (2024) SCC
Online SC 2823, Siddamsetty Infra
Projects Pvt. Ltd. vs. Katta Sujatha
Reddy & others (2024) SSC Online SC
3214, Sriram Housing Finance and
Investment India Limited vs. Omesha
Mishra
Memorial
Charitable
Trust
(2024) 15 SCC 176, Suresh Chand Jain
vs. IIIrd Addl. District Judge (2001) 10
SCC 508, Silverline Forum Pvt. Ltd. vs.
Rajiv Trust & another (1998) 3 SCC 723,
Regional Manager, Region II, State
Bank of India, Zonal Office, Garh Road,
Meerut & others vs. Pradeep Goel (1992)
All WC 857, Hari Vishnu Kamath vs.
Ahmad Ishaque & others (1955) AIR SC
233, State of Gujarat vs. Vakhatsingji
Vajesinghji Vaghela (dead) & others
(1968) AIR SC 1481 and M.M.T.C.
Limited
vs.
Commissioner
of
Commercial Tax & others (2009) 1 SCC
8.

13. I have heard learned counsel for
the parties and perused the material on
record.

14. The entire dispute hinges
around plot no. 776 purchased by both the
parties. It is not in dispute that Sushila
Kumari on 03.12.1976 had purchased plot
no. 767 through registered sale deed from
Roop Chand Jain. On 20.05.1979 Urmila
Jain purchased 9 decimal of plot no. 776
from Malti Devi. It was after the death of
Sushila Kumari when the suit was filed by
Urmila Jain, that Ram Narayan, husband of
Sushila
Kumari,
got
a
correction
deed/titimma
executed
by
power
of
attorney holder of Roop Chand Jain and
plot no. was changed from 767 to 776.

15. Admittedly, before the correction
deed/titimma was carried out Ram Narayan
filed an affidavit on 30.01.1991 that Sushila
Kumari had purchased the plot no. 767 in
Original Suit No. 33 of 1991 filed by Urmila
Jain. It was during pendency of suit filed by
Urmila Jain and Ram Narayan, that the
property in dispute was purchased by
petitioner on 12.01.2001 from Ram Narayan.
The suit filed by Urmila Jain was decreed on
14.10.2003 and the suit filed by Ram
Narayan was dismissed, against which Civil
Appeal No. 96 of 2003 was filed which was
also dismissed on 13.04.2010.

16. Petitioner, during this period,
never moved an application for becoming the
party in appeal, and after the appeal was
dismissed and execution case was filed by the
decree holder Urmila Jain, an impleadment
application was filed by the petitioner which
was rejected thrice. In the meantime,
petitioner also instituted Suit No. 341 of 2010
which was dismissed on 20.09.2022 against
which no appeal was preferred.

17. Petitioner, during pendency of
the said suit, moved an application under
Order XXI Rule 97 CPC before the executing
court which was also being contested by the
decree holder and objections were raised as to
the maintainability on the ground that
application is hit by doctrine of lis pendens.
The decree holder also objected that
application is barred by the provisions of res
judicata and it should be decided first by the
executing court. The trial court on 16.05.2024
having framed the issue in regard to res
judicata, but observed that it will be decided
at the final stage after completing all
evidences of parties. The order of executing
court was subjected to revision under Section
115 CPC by the decree holder respondent.

18. 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
3 All. Smt. Santosh Awasthi Vs. Smt. Urmila Jain
121
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.

19. Recently, Apex Court in
Siddamsetty Infra Projects Pvt. Ltd. Vs.
Katta Sujatha Reddy and others, 2024
SCC OnLine SC 3214 while considering
the doctrine of lis pendens held that very
purpose of lis pendens is to ensure that the
process of Court is not subverted and
rendered infructuous. In the absence of the
doctrine of lis pendens, a defendant could
defeat the purpose of suit by alienating the
suit property. Relevant paragraph nos. 47
and 49 are extracted hereasunder;

"47. In short, the doctrine of lis
pendens that Section 52 of the Transfer of
Property
Act
encapsulates,
bars
the
transfer of a suit property during the
pendency of litigation. The only exception
to the principle is when it is transferred
under the authority of the court and on
terms imposed by it. Where one of the
parties to the suit transfers the suit
property (or a part of it) to a third-party,
the latter is bound by the result of the
proceedings even if he did not have notice
of the suit or proceeding. The principle on
which this doctrine rests was explained by
Lord Turner in Bellamy v. Sabine11 as
follows:

"It is, as I think, a doctrine
common to the courts both of Law and
Equity and rests, as I apprehend, upon this
foundation that it would plainly be
impossible that any action or suit could be
brought to a successful termination, if
alienations pendente lite were permitted to
prevail. The plaintiff would be liable in
every case to be defeated by the defendants
alienating before the judgment or decree,
and would be driven to commence his
proceedings de novo, subject again to be
defeated
by
the
same
course
of
proceedings."

49. The purpose of lis pendens is
to ensure that the process of the court is not
subverted and rendered infructuous. In the
absence of the doctrine of lis pendens, a
defendant could defeat the purpose of the
suit by alienating the suit property. This
purpose of the provision is clearly
elucidated in the explanation clause to
Section 52 which defines "pendency".
Amending Act 20 of 1929 substituted the
word "pendency" in place of "active
prosecution". The Amending Act also
included the Explanation defining the
expression
"pendency
of
suit
or
proceeding". "Pendency" is defined to
commence from the "date of institution"
until the "disposal". The argument of the
respondents that the doctrine of lis pendens
does not apply because the petition for
review was lying in the registry in a
defective state cannot be accepted. The
review
proceedings
were
"instituted"
within the period of limitation of thirty
days. The doctrine of lis pendens kicks in at
the stage of "institution" and not at the
stage when notice is issued by this Court.
Thus, Section 52 of the Transfer of
Property Act would apply to the third-party
purchaser once the sale was executed after
the review petition was instituted before
this Court. Any transfer that is made during
the pendency is subject to the final result of
the litigation."

20. In Shingara Singh Vs. Daljit
Singh and another, 2024 SCC OnLine
SC 2823, Apex Court while considering the
earlier decision rendered in case of Usha
122 INDIAN LAW REPORTS ALLAHABAD SERIES
Sinha Vs. Dina Ram 2008 (7) SCC 144
held that doctrine of lis pendens applies to
an alienation during the pendency of the
suit whether such alienees had or had no
notice
of
the
pending
proceedings.
Relevant paragraph no. 11 is extracted
hereasunder;

"11. InUsha Sinha v. Dina Ram2
this Court held that the doctrine of lis
pendens applies to an alienation during the
pendency of the suit whether such alienees
had or had no notice of the pending
proceedings. The following has been held I
paras 18 & 23:

"18. Before one-and-half century,
in Bellamy v. Sabine [(1857) 1 De G & J
566 : 44 ER 842], Lord Cranworth, L.C.
proclaimed that where a litigation is
pending
between
a
plaintiff
and
a
defendant as to the right to a particular
estate, the necessities of mankind require
that the decision of the court in the suit
shall be binding not only on the litigating
parties, but also on those who derive title
under them by alienations made pending
the suit, whether such alienees had or had
not notice of the pending proceedings. If
this were not so, there could be no certainty
that the litigation would ever come to an
end.

23. It is thus settled law that a
purchaser of suit property during the
pendency of litigation has no right to resist
or obstruct execution of decree passed by a
competent court. The doctrine of "lis
pendens" prohibits a party from dealing
with the property which is the subjectmatter of suit. "Lis pendens" itself is
treated
as
constructive
notice
to
a
purchaser that he is bound by a decree to
be entered in the pending suit. Rule 102,
therefore, clarifies that there should not be
resistance or obstruction by a transferee
pendente lite. It declares that if the
resistance is caused or obstruction is
offered by a transferee pendente lite of the
judgment-debtor, he cannot seek benefit of
Rules 98 or 100 of Order 21."

21. In Sriram Housing Finance
and
Investment
Vs.
Omesh
Misra
Memorial Charitable Trust 2024 (15)
SCC 176, Apex Court observed that under
Rule 97 of Order XXI it is only the decree
holder who is entitled to make an
application in case where he is offered
resistance or obstruction by any person.
Further, Rule 99 pertains to making a
complaint to Court against dispossession of
immovable
property
by
person
in
possession of the property by the holder of
decree or purchaser thereof.

22.
In
the
instant
case,
the
application under Order XXI Rule 97 has
been moved by a transferee pendete
lite/petitioner, who had purchased the
property from the plaintiff of Suit No. 151
of 1991 on 12.01.2001, while the suit was
decided on 14.10.2003. She never become
party to the suit nor to the appeal. In fact
Suit No. 341 of 2010 instituted by her was
dismissed on 20.09.2022, against which no
appeal till date has been filed.

23. In Silverline Forum Pvt. Ltd.
vs. Rajiv Trust & another (1998) 3 SCC
723 the Apex Court while interpreting the
words "all questions arising between the
parties to a proceeding on an application
under Rule 97" held that it envelopes only
such question as would legally arises for
determination between those parties. The
Court is not obliged to determine a question
merely because resister raised it.

24. The Court further held that
question which the executing court is
obliged to determine under Rule 101, must
3 All. Smt. Santosh Awasthi Vs. Smt. Urmila Jain
123
possess two adjuncts. First is that such
questions should have legally arisen
between the parties, and the second is, such
questions
must
be
relevant
for
consideration and determination between
the parties, e.g., if the obstructor admits
that he is a transferee pendente lite it is not
necessary to determine a question raised by
him that he was unaware of the litigation
when he purchased the property.

25. Rule 102 of Order XXI clearly
bars its applicability to transferee pendente
lite and the same is extracted hereasunder;

 "Order 21 Rule 102 CPC
 Rules
not
applicable
to
transferee pendente lite- Nothing in Rules
98 and 100 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 such person.

Explanation-
In
this
rule,
"transfer" includes a transfer by operation
of law."

26. Petitioner before this Court is
admittedly a transferee pendente lite and
has not denied the factum of purchase of
disputed property from Ram Narayan in the
year 2001 when both the original Suits No.
33 of 1991 and 151 of 1991 were pending
consideration. In view of the judgment
rendered by Apex Court in case of
Shingara Singh (Supra), Siddamsetty
Infra Projects Pvt. Ltd. (Supra), Sriram
Housing
Finance
and
Investment
(Supra) and the judgment rendered in
Silverline Forum Pvt. Ltd. (Supra),
petitioner being a transferee pendente lite
cannot maintain application under Rule 97
of Order XXI and is bound by the decree,
and further barred by Rule 102 of Order
XXI.

27. Further, petitioner has not
denied the rejection of his impleadment
application during execution proceedings
and, thereafter, dismissal of the suit
instituted by her in the year 2010. Once
such is a situation petitioner has to justify
maintaining her application under Order
XXI Rule 97 CPC.

28. Question which arises for
consideration, at this juncture, is whether
the executing court was justified in passing
the order dated 16.05.2024 when objections
were raised by decree holder Urmila Jain as
to the maintainability of the application
under Order XXI Rule 97 and the same
being barred by the provisions of res
judicata. Admittedly, executing court had
framed the issue of res judicata but had
proceeded to hold that the said issue would
be decided after considering the evidences
at final stage.

29. 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. In
case the issue of res judicata was framed by
the executing court it should have decided
and not waited for taking any evidence
further and postponing it.

30. 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
124 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

31.
However,
considering
the
argument raised by petitioner's counsel as
to the maintainability of civil revision
against the order dated 16.05.2024, I find
that it was not a case decided and only the
executing court after framing the issue of
res judicata had postponed the matter to be
decided at the final stage. 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.

32. Reliance placed upon the
various decisions of Apex Court does not
help the respondent counsel as the
judgment relied upon in case of Surya Dev
Rai Vs. Ram Chander Rai 2003 (6) SCC
675, Radhey Shyam and another Vs.
Chhabi Nath and others 2009 (5) SCC
616, clearly hold that the supervisory
jurisdiction are to be exercised sparingly
and only in appropriate cases where the
judicial conscience of the High Court
dictates it to act lest a gross failure of
justice or grave injustice should occasion.

33. 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.

34.
After
giving
thoughtful
consideration, I find that the revisional court
had exceeded its jurisdiction by dismissing
the application filed under Order XXI Rule
97 by the petitioner before the executing
court while exercising revisional jurisdiction
under Section 115 CPC. However, the
executing court has also failed in its
endeavour to decide the execution case
pending before it since the year 2014, and
after framing the issue of res judicata had
postponed the matter to be decided at the
final stage.

35. In such a case where it is an
admitted
fact
that
the
property
was
transferred during pendency of the suit and
petitioner is a transferee pendente lite and hit
by provisions of Section 52 of the Transfer of
Property Act, the executing court should
have, at the very outset, proceeded to pass the
order in pursuance of Rule 102 CPC.

36. Recently, on 06.03.2025, the
Supreme Court in Periyammal vs. V.
Rajamani, Civil Appeal No. 3640-3642 of
2025 issued necessary directions for the
executing court throughout the country for
expediting the execution proceedings, relying
upon
the
earlier
decisions.
Relevant
paragraphs are extracted hereasunder:-

"72. Before we close this matter,
we firmly believe that we should say
3 All. Smt. Santosh Awasthi Vs. Smt. Urmila Jain
125
something as regards the long and
inordinate delay at the end of the Executing
Courts across the country in deciding
execution petitions.

73. It is worthwhile to revisit the
observations in Rahul S. Shah (supra)
wherein this Court has provided guidelines
and directions for conduct of execution
proceedings. The relevant portion of the
said judgment is reproduced below:

"42. All courts dealing with suits
and
execution
proceedings
shall
mandatorily follow the below mentioned
directions:

42.1. In suits relating to delivery
of possession, the court must examine the
parties to the suit under Order 10 in
relation to third-party interest and further
exercise the power under Order 11 Rule 14
asking parties to disclose and produce
documents, upon oath, which are in
possession
of
the
parties
including
declaration
pertaining
to
third-party
interest in such properties.

***

42.5. The court must, before
passing the decree, pertaining to delivery
of possession of a property ensure that the
decree is unambiguous so as to not only
contain clear description of the property
but also having regard to the status of the
property.

***

42.8.
The
court
exercising
jurisdiction under Section 47 or under
Order 21 CPC, must not issue notice on
an application of third party claiming
rights in a mechanical manner. Further,
the court should refrain from entertaining
any such application(s) that has already
been considered by the court while
adjudicating the suit or which raises any
such issue which otherwise could have
been
raised
and determined
during
adjudication of suit if due diligence was
exercised by the applicant.

42.9. The court should allow
taking of evidence during the execution
proceedings only in exceptional and rare
cases where the question of fact could not
be decided by resorting to any other
expeditious method like appointment of
Commissioner or calling for electronic
materials including photographs or video
with affidavits.

42.10.
The
court
must
in
appropriate cases where it finds the
objection or resistance or claim to be
frivolous or mala fide, resort to sub-rule
(2) of Rule 98 of Order 21 as well as grant
compensatory costs in accordance with
Section 35-A.

***

42.12. The executing court must
dispose of the execution proceedings
within six months from the date of filing,
which may be extended only by recording
reasons in writing for such delay.

***
(Emphasis supplied)

74. The mandatory direction
contained in Para 42.12 of Rahul S. Shah
(supra)
requiring
the
execution
proceedings to be completed within six
months from the date of filing, has been
reiterated by this Court in its order in Bhoj
Raj Garg v. Goyal Education and Welfare
Society, Special Leave Petition (C) Nos.
19654 of 2022."

37.
Considering
the
facts
and
circumstances of the case, the order dated
05.08.2024 passed by Additional District
Judge, Court No. 1, Jhansi in Civil
Revision No. 59 of 2024 as well as the
order
of
executing
court
dated
16.05.2024 passed in Misc. Case No. 6 of
2024 are hereby set aside. The matter is
remanded to the executing court to pass
126 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary orders on the application moved
under Order XXI Rule 97 CPC by the
petitioner in accordance with law keeping
in mind the decisions of Apex Court
rendered in cases of Shingara Singh
(Supra), Siddamsetty Infra Projects Pvt.
Ltd. (Supra), Sriram Housing Finance
and
Investment
(Supra),
Silverline
Forum
Pvt.
Ltd.
(Supra)
and
Periyammal (Supra) as well as Rule 102
CPC and considering the doctrine of lis
pendens, within a period of one month
from the date of receipt of a certified copy
of this order.

38. With the aforesaid directions,
writ petition stands disposed of.
----------
(2025) 3 ILRA 126
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.03.2025

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SAMIT GOPAL, J.

Application U/S 482 No. 13742 of 2021
With
Application U/S 482 No. 13816 of 2021

Mohd. Khalid ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ashish Malhotra, Ms. Pushpila Bisht

Counsel for the Opposite Parties:
Sri Ashutosh Upadhyay, Sri Birendra Singh,
Sri Ajay Kumar Singh, G.A.

Criminal Law - Criminal Procedure Code,
1973
-
Section

482
-
Negotiable
Instruments Act,1881 - Sections 138 &
142- Application U/s 482 - Larger Bench -
constituted to address whether filing of a
Impleadment application in a complaint filed
under Section 138 of the N.I. Act is valid, if
filed solely against the proprietor without
naming the company as an accused -
Different High Court benches had given
conflicting decisions - The reference arose
due
to
conflicting
High
Court
rulings
interpreting Aneeta Hada v. Godfather
Travels. - Later, the Supreme Court in
Pawan Kumar Goel v. St. of U.P. clarified
that if a company is involved, it must be
named as an accused in the complaint.
Also, once the legal time limit (limitation
period) for taking action under Section 142
is over, no new accused can be added - held
- no additional accused can be impleaded
subsequent to filing of a complaint once the
limitation
prescribed
for
taking
of
cognizance of the offence under section 142
of the NI Act, has expired - hence, the
reference was thus answered - and the
matter will resume before the concerned
Single Judge - Application is pending.
(Para - 9, 10, 11)

Application Pending. (E-11)

List of Cases cited:

1. Mohd. Khalid Vs St. of U.P. & anr. - Criminal
Misc. Application U/S 482 No. 11600 of 2021
decided on 19.08.2021,

2. Gaurav Sabbarwal Vs St. of U.P. - Criminal
Misc. Application U/S 482 No. 1224 of 2021 -
decided on 19.08.2021,

3. Aneeta Hada Vs Godfather Travels and Tours
Private Limited: (2012) 5 SCC 661,

4. Pawan Kumar Goel Vs St. of U.P. & anr.: 2022
SCC OnLine SC 1598.

(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Ms. Pushpila Bisht and Shri
Ashish Malhotra, learned counsels for the
applicant, Shri Ajay Kumar Singh, Holding
Brief of Shri Birendra Singh, learned
counsel for the O.P. No.2, Shri A.N. Mulla,
Shri Shashi Shekhar Tiwari and Shri
Jitendra Kumar Jaiswal, learned AGAs for