• Limitation

Is there any Limitation to implead the third party (who purchased the suit property from original JD in Lis Pendens, when there was specific interim orders {not to create TP interest} issued by HC in first appeal, filed by appellant {defendant in suit /JD in execution petition i.e. decree} to stay the execution of judgment and decree of TC) to be added as JD (with original JD) in execution petition being Third party has got their name on 7x12 extract by mutation and they are in actual physical possession on the basis of illegal sale-deed occured in lis-pendens and during the force of HC's stay order. 

Very Important : the third party /purchase very well known about the litigation pending in HC, the said litigation is mentioned in the illegal sale-deed. 

I have not applied any application to add this purchaser as /with original JD though I am knowning about this misdeed occured in between JD and Third Party. 

Secondly the JD has withdrawn the First Appeal from Court without mentioning the reasons therefore the judgment and decree now has become final and binding on everyone. 

1st question :

You are all requested to inform on the part of Limitation to add Third party as JD. 

Second question : 

whether I can file a suit against JD and third party to cancell the instrument under specific relief mostly under section 31 to 33. how the limitation is counted ?
Asked 6 years ago in Civil Law

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11 Answers

When a third party purchased a property which is under litigation and such third party has knowledge about it, then he purchases the property on as is where is basis and the purchase would be subject to the final outcome of the litigation and would bind such third party

as the JD has withdraw the appeal against the TC's decree, you can now execute the decree and take steps to recover possession of the property

while doing so, the third party will act as an obstructionist and will obstruct the execution of the decree

therefore you will have to take out an obstructionist notice in which this third party will be the respondent and he will be heard by the executing court as to the right under which he claims over the property in question

thus the question of limitation does not arise

just execute the decree and on obstruction by this third party, take out obstructionist proceedings in which this third party will be joined as a respondent 

Yusuf Rampurawala
Advocate, Mumbai
7920 Answers
79 Consultations

The third party has not been added as party to the original suit and there was no relief granted against the third party by making the third party as judgment debtor.

Therefore the third party may not be impleaded as necessary party in the execution petition.

Moreover the purchase of property by the third party during the pendency of the suit was a subsequent development and the plaintiff never took any steps to add the third party/purchaser as necessary party to the suit to claim the relief which he is now seeking against him nor amended his prayer seeking cancellation of the sale deed as an additional relief nor sought direction to cancel the mutation entry with the revenue department in this regard.

However the original relief sought in the original suit itself may be sufficient to file the execution petition without bothering about the possession of the third party because as far as the decree holder is concerned the defendant/judgment debtor was the owner of the property at the time of initiating the suit, so let him answer this and the third party can claim relief separately through court of law by initiating a new suit against his vendor and this decree holder.

In fact it was the subsequent purchaser who should have taken steps to implead himself as necessary party in the pending suit but he remained silent intentionally despite being aware of the fact that there is a dispute going on in the property, he purchased and there is an entry or recital in his registered sale deed to this effect, hence he cannot claim innocence of the status of the property at the time of his purchase. 

You may discuss with your advocate on all such further issues at length and decide further course of proper action to be initiated in this connection.

T Kalaiselvan
Advocate, Vellore
90162 Answers
2505 Consultations

1)The provisions of Order I Rule 10 of Code of Civil Procedure enables the Court to add any person as party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the question involved in the Suit.

 

 

 2) alienation is without permission of the Court and as such the same is hit by doctrine of lis pendence, declaration of sale deeds to be null and void is not necessary.

 

3) Apex Court in case of Bibi Zubaida Khatoon v. Nabi Hassan Sahab reported in AIR 2004 SUPREME COURT 173 held that Transferee pendente lite are not necessary parties to the pending Suit.

 

4) A transferee is bound by the Decree just as much as he was party to the Suit. The principle of lis pendens embodied in Section 52 of the Act being a principle of public policy, no question of good faith or bona fide arises.

Ajay Sethi
Advocate, Mumbai
99961 Answers
8158 Consultations

No need to add the purchaser as party to the suit 

Ajay Sethi
Advocate, Mumbai
99961 Answers
8158 Consultations

It is said that justice must not only be done but it must appears to have been done. In justice delivery system only passing of decree is not an aim but its achievement lies in the execution of decrees.

 

Execution of decree is a real justice to the people. Once decree is passed by the court, the court is bound to enforce its execution peacefully and without causing any obstruction or resistance either by judgment debtor or by a third person.

 

If a decree holder, is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order XXl, Rule 35 then the decree holder has to move an application under Order XXl, Rule 97 for removal of such obstruction and after hearing the decree ­holder and the obstructionist the Court can pass appropriate order after adjudicating upon the controversy between the parties as per R. 97 sub­rule (2) of Order XXI of CPC,

 

It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without just cause by the Judgment debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per order XXI, Rule 97 sub­rule (2) and the decree holder would be permitted to be put in possession.

 

Even in such an eventuality the order passed would be treated as a decree under Order XXI, Rule 103 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree.

T Kalaiselvan
Advocate, Vellore
90162 Answers
2505 Consultations

Adding third party to proceedings is called Impleading (Order I, Rule 10 of CPC) it can be done at any stage of the pending proceedings.

In your case, there is specific direction not to create TP interest, as such, there is no need to add third party  / subsequent purchaser to the pending litigation i.e., lis-pendence.

Sale / alienation pending HC direction is not valid, i.e., any transfers during pendency of litigation is not valid.

No title / ownership will be passed to the purchaser during pendency of litigation.

Proceed with the execution, there is no need for your to add the third party.

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

Yes you can file suit as aforesaid for appropriate direction the same is maintainable

Prashant Nayak
Advocate, Mumbai
34649 Answers
249 Consultations

If you have file cross appeal than you can continue to appeal. Suit not abate by withdrawal.

Mentioning sale deed that stay form HC and still sub registrar registered the sale deed is grave error and directly violated court and committed contempt. 

You can file contempt against seller, buyer and sub registrar. Sale deed is void. No need to file fresh suit against buyer and along with conptemt file execution petition.

Buyer is bound by the order of court. You can also file FIR agaisnt buyer and seller for forgery, trespass and cheating.

Yogendra Singh Rajawat
Advocate, Jaipur
23085 Answers
31 Consultations

Limitation is for filing suit agsisnt buyer for cancellation of sale deed which is already void hence, no suit require.

Yogendra Singh Rajawat
Advocate, Jaipur
23085 Answers
31 Consultations

1. There is no need to implead the buyer of a property from the defendant during the pendency of the suit.

2. The supreme court has time and again made this clear that buyer of property in lis pendence is not a ncessary party and hence he can not be added as party defendant.

3. If the decree is passed then there is no scope for adding in execution case even the person even if he is a necessary party.

Sp execute the decree without any further change. 

Devajyoti Barman
Advocate, Kolkata
23659 Answers
538 Consultations

1. You cannot implead third party as JD because third party was not a party in original suit. 

2. You should file execution petition along with cancellation of sales deed executed during pendency of appeal and during stay by High court.

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

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