Introduction:

The case of Kashinath Ramji Shinde vs. Pradip & Ors. (2026 LiveLaw (Bom) 211) came before the Bombay High Court, raising a significant question regarding civil procedure and property law—whether deletion of a party from a suit under Order 1 Rule 10 of the Code of Civil Procedure, 1908 absolves such party from the binding effect of a decree, particularly when the party is a purchaser pendente lite. The matter was adjudicated by Justice Ajit B. Kadethankar.

The dispute arose during execution proceedings following a decree for possession obtained by the petitioner (decree-holder). During the pendency of the original suit, one of the respondents had purchased a portion of the suit property from the original defendant. Although initially impleaded as a party, the purchaser was later deleted from the array of defendants under Order 1 Rule 10 CPC.

When the decree-holder sought possession against the said purchaser during execution, the executing court rejected the application on the ground that the purchaser was not a party to the decree. This led to the filing of the writ petition before the High Court.

The central issue before the Court was whether deletion of a party from the suit proceedings amounts to abandonment of claims against that party, and whether a purchaser pendente lite can escape the consequences of a decree merely because he was not formally a party at the time of its passing.

Arguments on Behalf of the Petitioner (Decree-Holder):

The petitioner contended that the executing court had committed a grave error in law by refusing to enforce the decree against the purchaser pendente lite. It was argued that the respondent had acquired the property during the pendency of the suit and, therefore, his rights were subject to the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882.

Counsel for the petitioner emphasized that a purchaser pendente lite steps into the shoes of the original defendant and cannot claim any independent or superior right. Such a purchaser is bound by the outcome of the litigation, irrespective of whether he was formally a party to the suit at the time of the decree.

It was further argued that the deletion of the respondent from the suit under Order 1 Rule 10 CPC did not amount to withdrawal of the claim against him. The petitioner highlighted that Order 1 Rule 10 deals with the propriety or necessity of parties, whereas withdrawal of a suit is governed by Order 23 Rule 1 CPC, which has entirely different legal consequences.

The petitioner also relied on Section 146 of the Code of Civil Procedure, 1908, which permits execution proceedings to be initiated against persons claiming under a party to the suit. It was submitted that the respondent, having derived title from the original defendant, clearly fell within this provision.

Additionally, reliance was placed on Order 21 Rule 35 CPC, which allows execution of a decree for possession against any person bound by the decree. The petitioner argued that the respondent, as a transferee pendente lite, was undoubtedly bound by the decree.

Arguments on Behalf of the Respondent (Purchaser Pendente Lite):

The respondent, on the other hand, contended that he could not be subjected to execution proceedings as he was no longer a party to the suit at the time of the decree. It was argued that his deletion from the suit effectively meant that no relief was sought against him, and therefore, the decree could not be enforced against him.

The respondent sought to equate his deletion under Order 1 Rule 10 CPC with withdrawal of the suit against him, arguing that once he was removed from the proceedings, the plaintiff had abandoned any claim against him.

It was further contended that execution proceedings cannot go beyond the scope of the decree. Since the respondent was not named in the decree, any attempt to dispossess him would amount to executing the decree against a non-party, which is impermissible in law.

The respondent also argued that he was a bona fide purchaser and had acquired the property in good faith. Therefore, he should not be penalized for the outcome of litigation to which he was not a party at the time of the decree.

Judgment:

The Bombay High Court, after a detailed analysis of the legal provisions and facts, allowed the writ petition and set aside the order of the executing court. The Court held that the executing court had erred in treating the deletion of the respondent as equivalent to withdrawal of the suit against him.

At the heart of the judgment lies the distinction between Order 1 Rule 10 CPC and Order 23 Rule 1 CPC. The Court categorically held that these provisions operate in entirely different spheres. While Order 1 Rule 10 pertains to the addition or deletion of parties based on their necessity or propriety in the proceedings, Order 23 Rule 1 deals with withdrawal or abandonment of the suit.

The Court observed that deletion of a party does not amount to abandonment of claims against that party. It merely reflects the Court’s determination that the presence of the party is not necessary for adjudication of the issues involved.

The Court further held that a purchaser pendente lite is governed by the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882. Such a purchaser acquires the property subject to the outcome of the litigation and is bound by the decree passed against the original defendant.

Importantly, the Court emphasized that the respondent derived title from the original defendant and, therefore, could not claim immunity from the decree. The fact that he was deleted from the suit did not alter his legal position as a transferee pendente lite.

The Court also relied on Section 146 of the Code of Civil Procedure, 1908, which allows proceedings to be taken against persons claiming under a party. This provision, according to the Court, clearly enabled the decree-holder to pursue execution against the respondent.

Further, the Court interpreted Order 21 Rule 35 CPC to include within its ambit “any person bound by the decree.” It held that the respondent, being a purchaser pendente lite, fell within this category and could not resist execution.

The Court criticized the executing court for adopting an erroneous approach and failing to appreciate the distinction between deletion and withdrawal. It held that the executing court’s reasoning was legally unsustainable and resulted in a miscarriage of justice.

Accordingly, the High Court quashed the impugned order dated 19.08.2024, allowed the petitioner’s application for possession, and directed the executing court to proceed with the execution expeditiously.