- (1.) Heard the learned counsels.
(2.) This writ petition is directed against the order dtd.27.11.2008 passed by the learned Executing Court rejecting the application under Section 151 C.P.C. filed by the petitioner. 3. The learned trial Court observed that since the petitioner had purchased the disputed property from one of the plaintiffs Malam Singh, it was subject to Section 52 of the Transfer of Property Act and therefore, Rule 102 of Order 21 C.P.C. does not permit resistance or obstructions to possession by such purchaser. 4. The learned counsel for the respondents Mr. Manish Shishodia relied on the judgment of Hon'ble Supreme Court in the case of Usha Singh V/s Dina Ram and ors. reported in (2008) 7 SCC 144, in which the Hon'ble Supreme Court has held as under: "Bare reading of the Rule 102 of Order 21 CPC makes it clear that it is based on justice, equity and good conscience. A transferee from a judgment-debtor is presumed to be aware of the proceedings before a court of law. He should be careful before he purchases the property which is the subject-matter of litigation. It recognises the doctrine of lis pendens recognized by Section 52 TPA. Rule 102 of Order 21 CPC thus takes into account the ground reality and refuses to extend helping hand to purchasers of property in respect of which litigation is pending. If unfair, inequitable or undeserved protection is afforded to a transferee pendente lite, a decree-holder will never be able to realise the fruits of his decree. Every time the decreeholder seeks a direction from a court to execute the decree, the judgment-debtor or his transferee will transfer the property and the new transferee will offer resistance or cause obstructions. To avoid such a situation, the Rule has been enacted."
(3.) On the other hand, Mr. Suresh Shrimali, learned counsel for the petitioners - purchasers of disputed property submitted that the learned Executing Court has erred in rejecting the application under Section 151 CPC without deciding the objections under Order 21 Rule 97 C.P.C. He further submitted that the arguments on the said application are now fixed before the learned Executing Court on 15.1.2010.;