Lis pendens and execution remedies: pendente lite transferees cannot bypass the execution scheme with a separate suit.

A pendente lite transfer of mortgaged property was held to be hit by lis pendens under Section 52 of the Transfer of Property Act, so the transferees were bound by the pending litigation. Relief was unavailable under Order XXI Rule 89 because that remedy is conditional and time-bound, and under Rule 90 because the grievances did not amount to material irregularity or fraud causing substantial injury. A separate suit was barred by Order XXI Rule 92(3) and Section 47, as the transferees were treated as representatives of the judgment-debtor rather than third parties under Rule 92(4). The execution scheme, including Rule 99, provided the proper forum; a separate suit could not be used to bypass it.

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Issues: (i) whether the transfer of the suit property was hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882; (ii) whether the transferees could have obtained relief under Order XXI Rule 89 or Rule 90 of the Code of Civil Procedure, 1908; (iii) whether a separate suit was barred by Order XXI Rule 92(3) and Section 47 of the Code of Civil Procedure, 1908, and whether the transferees were third parties under Rule 92(4); (iv) whether relief could have been sought under Order XXI Rule 99 and, if so, whether omission to pursue that remedy affected maintainability of the suit.

Issue (i): whether the transfer of the suit property was hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882.

Analysis: The doctrine applies where a suit or proceeding in a competent court is pending and a right to immovable property is directly and specifically in question. A money suit may still attract the doctrine where the plaint and decree disclose that the mortgaged property is part of the subject matter and may be proceeded against in execution. A pendente lite transferee is bound by the result of the litigation irrespective of notice. The transfer here was made after institution of the bank's suit and during the pendency of proceedings in which the mortgaged property was directly in issue.

Conclusion: The transfer was hit by lis pendens and the transferees were pendente lite transferees.

Issue (ii): whether the transferees could have obtained relief under Order XXI Rule 89 or Rule 90 of the Code of Civil Procedure, 1908.

Analysis: Rule 89 is a concessionary remedy available to a person claiming an interest in the property sold, including a pendente lite transferee, but it must be invoked within sixty days of the sale with the prescribed deposit. Rule 90 is confined to material irregularity or fraud in publishing or conducting the sale and requires proof of substantial injury. Matters relating to the judgment-debtor's saleable interest or title are outside Rule 90 and belong elsewhere in the scheme. The alleged grievances were either time-barred, or not the kind of injury that Rule 90 addresses.

Conclusion: No relief could be sustained under Rule 89 or Rule 90.

Issue (iii): whether a separate suit was barred by Order XXI Rule 92(3) and Section 47 of the Code of Civil Procedure, 1908, and whether the transferees were third parties under Rule 92(4).

Analysis: Rule 92(3) bars a suit by a person against whom an order confirming or setting aside sale is made when the grievance is one that falls within Rules 89 to 91. Section 47 bars a separate suit between the parties to the original decree or their representatives on questions relating to execution, discharge or satisfaction. A third party under Rule 92(4) is one outside the original lis and outside the category of representatives under Section 47, who has had no effective opportunity to have title adjudicated in execution. A pendente lite transferee of a judgment-debtor is not such a third party. The transferees here were held to be representatives of the judgment-debtor, and their challenge also overlapped with matters that should have been pursued in execution.

Conclusion: The separate suit was barred and the transferees were not third parties within Rule 92(4).

Issue (iv): whether relief could have been sought under Order XXI Rule 99 and, if so, whether omission to pursue that remedy affected maintainability of the suit.

Analysis: Rule 99 is available to a person other than the judgment-debtor who has been dispossessed in execution, and the post-amendment scheme read with Rule 101 makes the executing court the forum for adjudicating all questions of right, title and interest. A transferee pendente lite is disabled by Rule 102 from obtaining relief under Rules 98 and 100, but that does not revive a separate suit; the bar under Section 52 and the purpose of the amended execution scheme prevent circumvention of execution remedies. The transferees could have proceeded in execution, but the separate suit could not be maintained as an alternative route.

Conclusion: Rule 99 did not furnish a basis to maintain a separate suit, and the suit remained not maintainable.

Final Conclusion: The suit could not be sustained in law because the transferees were pendente lite transferees and representatives of the judgment-debtor, their challenge fell within the execution framework, and the separate suit route was unavailable on the facts. The appeal was therefore allowed.

Ratio Decidendi: A pendente lite transferee of a judgment-debtor, whose grievance concerns execution-related matters or the title of the judgment-debtor to the sold property, must ordinarily pursue the remedies provided in the execution scheme and cannot bypass those remedies by filing a separate suit; where the transfer is hit by lis pendens, relief of title and possession cannot be granted in favour of such transferee.

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