Synopsis

The petitioner (decree holder) obtained a decree for possession of immovable property after a long legal battle. During the pendency of the suit, Respondent No.7 purchased a portion of the suit property from the main judgment debtor (Respondent No.2). The petitioner added Respondent No.7 as a defendant but later sought his deletion under Order 1 Rule 10 CPC, which was allowed. The suit was decreed in the petitioner’s favour. In execution proceedings under Order 21 Rule 35 CPC, the petitioner sought delivery of possession from Respondent No.7. The Executing Court rejected the application, holding that since Respondent No.7’s name was deleted in the suit, he could not be said to be a “person bound by the decree.” The Bombay High Court quashed the Executing Court’s order, holding that: (i) deletion of a defendant under Order 1 Rule 10 is not equivalent to withdrawal of suit under Order 23 Rule 1; (ii) a purchaser pendente lite is bound by the decree under Section 52 of the Transfer of Property Act; (iii) such a purchaser falls within the meaning of “any person bound by the decree” under Order 21 Rule 35 CPC; and (iv) the Executing Court erred in treating the deletion as a withdrawal of the suit. The matter was remanded for expeditious execution.

Court: High Court of Judicature at Bombay, Bench at Aurangabad

Coram: Justice Ajit B. Kadethankar

Date of Judgment: 20th April 2026

Citation: Writ Petition No.12195 of 2024

Core Law: Code of Civil Procedure, 1908 – Order 1 Rule 10 (addition and deletion of parties), Order 21 Rule 35 (execution of decree for possession), Order 23 Rule 1 (withdrawal of suit), Section 146 (proceedings by or against persons claiming under); Transfer of Property Act, 1882 – Section 52 (lis pendens)

2. Legal Framework

Major laws and provisions involved

• Code of Civil Procedure, 1908 – Order 1 Rule 10 (power to strike out or add parties), Order 21 Rule 35 (execution of decree for delivery of immovable property), Order 23 Rule 1 (withdrawal of suit or abandonment of claim), Section 146 (proceedings by or against persons claiming under a party)

• Transfer of Property Act, 1882 – Section 52 (doctrine of lis pendens)

Key legal principles applied

• Deletion under Order 1 Rule 10 is not withdrawal under Order 23 Rule 1: Order 1 Rule 10(2) allows the court to strike out a party whose presence is improper. This is a procedural step to remove a party who is not necessary for adjudication. It does not amount to abandonment of the plaintiff’s claim against that party. In contrast, withdrawal under Order 23 Rule 1 involves a conscious and explicit abandonment of the claim, which has the effect of barring a fresh suit on the same subject matter (unless leave is obtained).

• Purchaser pendente lite is bound by the decree: Under Section 52 of the Transfer of Property Act, any transfer of immovable property made during the pendency of a suit in which the right to such property is directly and specifically in question is subject to the outcome of the suit.

... Upgrade to a Premium Plan to view the full judgment.