Remedy for transfer of property pending execution proceeding
Querist :
Anonymous
(Querist) 28 February 2017
This query is : Resolved
Sir i need to know the exact procedure to be followed when the jdr has transfered property pending EP. Should i make an application in the pending ep r should file a separate suit for cancellation of transfer. Sec 52 of TP act comes in to play but i am not aware of the procedure to b followed. Kindly guide me
Rajendra K Goyal
(Expert) 28 February 2017
No reply to query from an author who is anonymous.
Sri Vijayan.A
(Expert) 28 February 2017
I endorse the view of Mr. R K Goyal.
Author may inform his/ her identity.
Ms.Usha Kapoor
(Expert) 01 March 2017
If the Judgment Debtor transfers property during E.P Proceedings The DECREE holder can file an application to set aside such transfer from the PURCHASER AS SECTION 52 doctrine OF LISPENDENS APPLIES TO IT.THAT MEANS STATUS Quo of the suit property should remain intact till execution proceedings are completed.Please read on the following:
24. Rule 29 of Order XXI of the Code deals with cases wherein a suit has been instituted by the judgment-debtor against the decree- holder and has no relevance to cases of lis pendens wherein transfer of property has been effected by the judgment debtor to a third party during the pendency of proceedings. The High Court, in our opinion, rightly held that the appellant could not be said to be a 'stranger' to the suit inasmuch as she was claiming right, title and interest through defendant Nos. 4 and 5 against whom the suit was pending. She must, therefore, be presumed to be aware of the litigation which was before a competent Court in the form of Title Suit No.
140 of 1999 instituted by the present respondent against the predecessor of the appellant. As held in Bellamy, the fact that the purchaser of the property during the pendency of the proceedings had no knowledge about the suit, appeal or other proceeding is wholly immaterial and he/she cannot resist execution of decree on that ground. As observed in Silverline Forum, a limited inquiry in such cases is whether the transferee is claiming his right through the judgment-debtor. In our judgment, the High Court was also right in observing that if the appellant succeeds in the suit and decree is passed in her favour, she can take appropriate proceedings in accordance with law and apply for restitution. That, however, does not preclude the decree holder from executing the decree obtained by him.
Since the appellant is a purchaser pendente lite and as she has no right to offer resistance or cause obstruction and as her rights have not been crystallized in a decree, Rule 102 of Order 21 of the Code comes into operation. Hence, she cannot resist execution during the pendency of the suit instituted by her. The order passed by the High Court, therefore, cannot be said to be illegal, unlawful or otherwise contrary to law.
25. For the aforesaid reasons, the appeal deserves to be dismissed and is accordingly dismissed. On the facts and in the circumstances of the case, however, there shall be no order as to costs.
