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Teluguntla Hema Bala Sundari and ors. Vs. Pandiri Sakuntalamma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal Against Order No. 734 of 1978
Judge
Reported inAIR1983AP49
ActsTransfer of Property Act, 1882 - Sections 52, 55(4) and 100; Code of Civil Procedure (CPC), 1908 - Sections 47 - Order 34, Rule 14
AppellantTeluguntla Hema Bala Sundari and ors.
RespondentPandiri Sakuntalamma and ors.
Appellant AdvocateT. Veerabhadrayya, Adv.
Respondent AdvocateC. Narasimhacharya, ;P. Ramachandra Reddy and ;P. Venkatarama Reddy, Advs.
Excerpt:
(i) property - enforcement of decree - sections 55 (4) and 100 of transfer of property act, 1882 and order 34 rule 14 of code of civil procedure, 1908 - whether charge created by operation of section 55 (4) (b) for unpaid purchase money in decree for specific performance can be enforced by bringing property to sale without further suit under order 34 rule 14 - money decrees merely declared statutory charge on property - procedure in order 34 found to be applicable for their enforcement - decree was a decree for specific performance of agreement of sale - decree was not merely declaratory but executable - it confers rights and relief on both parties to suit - right to relief not possessed by plaintiff alone - in event of any breach of express terms of decree by any one of parties other.....1. questions of considerable importance fall for discussion and decision in this civil miscellaneous appeal which arises out of proceedings in execution. broadly stated they are:(i) whether a charge created by the operation of s. 55(4)(b) of the t.p. act for the unpaid purchase money in a decree for specific performance can be enforced by bringing the property to sale without a further suit under o. 34, r. 14 of the civil p.c.(ii) whether an application under section 47 of the civil p.c. is maintainable when the issue involved for decision is not one arising between the parties to the suit in which a decree was passed, but one arising between two auction purchasers representing the same person in different suits?(iii) whether the doctrine of lis pendens incorporated in s. 52 of the t.p......
Judgment:

1. Questions of considerable importance fall for discussion and decision in this civil miscellaneous appeal which arises out of proceedings in execution. Broadly stated they are:

(i) Whether a charge created by the operation of S. 55(4)(b) of the T.P. Act for the unpaid purchase money in a decree for specific performance can be enforced by bringing the property to sale without a further suit under O. 34, R. 14 of the civil P.C.

(ii) Whether an application under section 47 of the civil P.C. is maintainable when the issue involved for decision is not one arising between the parties to the suit in which a decree was passed, but one arising between two auction purchasers representing the same person in different suits?

(iii) Whether the Doctrine of Lis pendens incorporated in s. 52 of the T.P. Act can be invoked to invalidate involuntary alienations such as execution sales to enforce a compromise decree in a suit then pending?

2. The essential and relevant facts giving rise to the questions may be briefly stated:

One Teluguntla yesoda Ratnam obtained a decree for money in c.S. No. 108 of 1971 on the file of the subordinate Judge's Court, vijayawada, against her husband Teluguntla sundara satyanarayana Rao, and his minor son teluguntla Balakrishna venkata prakash in execution of the decree she filed E.P. No. 21 of 1972 and brought the property of the judgment-debtors to sale. The property was put to auction on 14-9-1972. The decree-holder became the auction-purchaser. The sale was confirmed on 23-10-1972 and the decree-holder took delivery of the property on 6-12-1972 under the delivery receipt. Ex A-4 she has been in possession and enjoyment of the said property since then.

3. Teluguntla sundara satyanarayana rao and his minor son teluguntla Balakrishna Venkata prakash judgment debtors in O.S. no. 108 of 1971 had earlier filed O.s. No. 78 of 1966 before the Court ofthe subordinate judge, vijayawada, against pandiri sakuntalamma and two others for specific performance of an agreement of sale dated 1-4-1965 and for a direction to the said pandiri sakuntalamma to execute the registered sale deed. The suit was decreed on 4-10-1966 and sakuntalamma was directed to execute the sale deed and also pay the costs. Against the said decree. Sakuntalamma filed an appeal, A.S. No. 474 of 1968 in the High Court the matter was compromised on 14-9-1970 and the compromise decree, Ext, A-1, was accordingly passed.

Even before the compromise decree Sakuntalamma executed the sale deed on 30th March, 1968. She filed an Execution petition E.P. 158 of 1973 in O.S. No. 78 of 1966 to recover the unpaid purchase money due under the compromise decree against Teluguntla sundara satyanarayana Rao and his minor son, Teluguntla Balakrishna venkata prakash. It appears, yesoda Ratnam, meanwhile created an equitable mortgage on the property in favour of one Shaik Raza Ahmed. The transferee of the said mortgage, filed E.A. No. 38 of 1975 to raise the attachment. It was dismissed on 22-4-1975 in the Court auction Mandavalli chalapathi Rao become the auction purchaser at the said auction.

4. Teluguntla yesoda Ratnam, the plaintiff in O.S. No. 108 of 1971, filed E.A. No. 839 of 1975 in O.S. No. 78 of 1966 on 30-6-1975 under S. 47 of the civil P.C. to set aside the sale on the ground that P. Sakuntalamma had no right to bring the property to sale, which was already sold and delivered to her on 6-12-1972 in execution of the decree obtained by her in O.S. No. 108 of 1971 and tha the sale held behind her back was vitiated by fraud and misrepresentation. She also prayed for postponement of the confirmation of sale till the disposal of her application, which was ordered. In her application, she impleaded the decree- holder and the auction-purchaser in O.S. No. 78 of 1966 as respondents 1and 2 and the common judgment-debtors in O.S. No. 108 of 1971 and O.S. No. 78 of 1966, who are no other than her husband and minor son as respondents 3 and 4.

5. The application was resisted by sakuntalamma and chalapathi rao, R-1 and R-2 respectively. Contending that the decree in O.S. No. 108 of 1971 as well as the execution proceedings have been collusive and stage managed in favour of the petitioner and her husband have been staying together allthrough and that the petitioner and her husband have been staying together allthrough, and that the petition schedule properly was sold for the realisation of the unpaid purchase money, for which admittedly the property stood as first charge under the provisions of S. 55 of the T.P. Act. It was also contended on behalf of th respondents 1 and 2 that unless the decree in O.S. No. 78 of 1966 was satisfied, no subsequent purchaser whether under a decree or under a document inter vivos will acquire a right superior to that of the decree-holder in O.S. 78 of 1966 and that the allegation that the decree-holder played fraud in the conduct of the sale was absolutely false since the petitioner and her husband, the judgment-debtor in O.S. No. 78 of 1966 were staying in the same house. It was also contended that the application in execution under S. 47, Civil P.C. and O. 21 R. 90. C.P.C. was not maintainable.

6. The learned subordinate judge held that the application schedule property stood as the first charge for the satisfaction of the unpaid purchase money under the compromise decree, Ex. A-1 dated 14-9-1970 in O.S. No. 78 or 1966 and the lien of the vendor was not extinguished by the date of the sale, which could only be after the decree was satisfied. The learned subordinate judge also held that the case of the petitioner that she was not aware of the charge in respect of the unpaid purchase money was understandable, since she is no other than the wife of the judgment-debtor living with him in the suit Schedule house and that the case of the decree-holder. Pandiri Sakuntalamma in O.s. No. 78 of 1966, that the petitioner has been set up to defraud the decree-holder cannot be untrue. As regards the maintainability of the Application under S. 47 of the civil P.C. the learned Judge held that the application of this type was not maintainable. Consequently the application of the petitioner was dismissed.

7. During the pendency of the application, the petitioner teluguntla yesoda ratnam died and her legal representatives were brought on record. The legal representatives of the petitioner have now preferred this present appeal.

8. The learned counsel for the appellants, Mr. T. Veerabhadrayya, submits that the amount due under the compromise decree, Ex. A-1, was not impressed with the character of unpaid purchase money. That it wasonly a decree for money, that there was no charge created by the operation of law, the provisions of S. 100 of the T.P. Act and O. 34 Rr. 14 and 15 of the C.P.C would apply and that the charge could not be enforced without prior suit under O. 34, R. 14, C.P.C. on the other hand the learned Advocate General appearing for the second respondent and Mr. C. Narasimhacharya, advocate for hte first respondent maintain that the sum of Rs. 750/- agreed to be paid under the compromise decree in O.s. No. 78 of 1966 by the petitioner can only represent the additional purchase money and that there has been no evidence adduced on behalf of the petitioner to establish that the said amount agreed to be paid under the compromise decree represents some amount other than additional sale consideration.

In the absence of any evidence argues the learned Advocate general, the said amount should be deemed to partake the character of additional sale consideration. The amount paid by the petitioner, as long as it remained in Court deposit, continued to be the money of the vendor, that the sale deed executed by the first respondent only recites that the amount has been deposites in Court, that even during the pendency of the appeal, the money in deposit continued to be the vendor's money and in case the first respondent's appeal had been allowed, the vendor would have taken back the money. So goes the argument of the learned Advocate General. Since the compromise decree itself states that the decree shall be executed through Court. It is submitted, the respondent could enforce the decree for the unpaid purchase money without filing any suit the further argument of the learned counsel for the respondents 1 and 2 is that the sale in favour of the petitioner was hit by the provisions of S. 52 of the T.P. Act asteh purchase by the petitioner of the property in question was admittedly during the pendency of the lis between the first respondent and respondents 3 and 4 in O.S. No. 78 of 1966. The learned counsel for repondent 1 and 2 also tried to sustain the finding of the Court below that the execution application was not maintainable under S. 47,C.P. C.

9. The pivotal point of the controversy between the parties in this appeal is whether a charge created by the operation of the S. 55(4)(b) of the T.P. Act for the unpaid purchase money in a decree for specific performance can be enforced by bringing the property to sale without a further suit under O> 34, R. 14 of the civil P.C.

10. The second point is whether the application is maintainable under S. 47 of the civil P.C when the dispute is one between rival auction-purchasers who represent the same person in different suits, and lastly whether the Doctrine of Lis pendens incorporated in S. 52 of the T.P. Act can be involved to involuntary alienations such as execution sales to enforce a compromise decree in a suit then pending.

I. Decree for specific performance under S. 35(c) of the specific Relief Act; S. 55(4)(b) of T.p. Act; O. 34. Rr. 14 and 15 of the civil P.C. & section 100 of the T.P. Act- Applicability:

II. Ths suit O.S. No. 78 of 1966 was one for specific performance of an agreement of sale dated 1-4-1965 and for a direction tot he first respondent before us to execute a registered sale deed. The suit was decreed on 4-10-1966 and the 1st respondent was directed to execute the sale deed within one month from the date of the decree and also pay costs of the suit. Against the said decree the first respondent preferred A.S. No. 474 of 1968 to this Court. While the appeal was pending respondents 3 and 4 attached the purchase money lying in deposit in the Court in execution of the decree for costs and recovered a sum of Rs. 3,000 and odd. A balance of Rs. 23,000 and odd was left inn deposit in Court towards purchase money. A compromise decree. Ex. A-1 was passed in the appeal on 14-9-1970. The compromise decree in A.s. no. 474 of 1968 is to the following effect:

'(1) that the appeal and cross-objections be and hereby are dismissed;

(2) that the respondents (plaintiffs) shall pay to the appellant (1st defendant) a sum of Rs. 750 (Rupees seven hundred and fifty only) within four months from the date of this order in default the respondent (plaintiffs) do also pay the interest at 5 1/2% per annum on the aforesaid sum of Rs. 750 till the date of realisation and the said decree shall be executed through the Court:

(3) that the parties shall have no further claims as against each other; and

(4) that each party to bear its own costs both in the High Court and the Court below'.

11. It is thus clear that unde the compromise decree the plaintiffs in the suit, Viz respondents 3 and 4 were directed to pay a sum of Rs. 750 to the defendant - 1st respondent. What does this sum represent? It can only partake the character of sale consideration in the absence of any evidence as to what it represents because the suit is one for specific performance of agreement of sale. Further the compromise decree recites that the plainiffs shall also pay the interest at 5 and half % per annum till the date of realisation and that the said decree shall be executed through Court. Moreover, the plaintiffs had also with drawn the costs from out of the purchase money lying in deposit in the Court The balance left in deposit in the Court towards purchase money was only Rupees 23,380-75 Ps. After the compromise decree the plaintiffs never made good the balance of the purchase money. The sale deed had been executed by the defendant on 30-3-1968. Thus a part of the sale consideration remained unpaid under the compromise decree.

Section 55(4)(b) of the T.P. Act provides that the seller shall be entitled where the ownership of the property has passed on to the buyer before payment of the whole of the purchaser money, to a charge upon the property in the hands of the buyer for the amount of the unpaid purchase money and for interest on such amount from the date on which the possession had been delivered. Therefore by the operation of S. 55(4)(b) the seller had the first charge on the property that was passed on to the buyer. But the question is, whether the seller can enforce the charge without further suit under o.34, R. 14 C.P.C. the question does not appear to be free from difficulty.

12. The learned counsel Mr. Veerabhadrayya submits that a charge even If it is a statutory charge, falls within the sweep of S. 100 of the T.P. Act, that the provisions of S. 67 of the T.P. Act are applicable to a charge-holder and he, like a simple mortgage is entitled to sue for the sale of the charged property. He submits that O. 34, R. 15 of the civil P.c. provides that all the provisions contained in that order which apply to a simple mortgage shall also apply to a charge within the meaning of S. 100 of the T.P. Act and a suit for a preliminary decree under O. 34 R. 14 would alone be the remedy in such a case. He placed reliance on the decision of the Madras High Court in Vuddagiri Ammanna v. Gada subbayya, (1935) 69 Mad LJ 854, and of this Court in Maddali Tiruvengalam v. Saladi Ammanna, : AIR1967AP206 .

13. In the first of the two cases, the Madras High Court held that in a case whether the decree was one for payment of money and declared that the plaintiff had a charge on the schedule property, the decree-holder could not bring the property to sale without getting a preliminary decree for sale under O. 34, R. 14, C.P.C. That was a case where the plaintiff brought a suit on promissory note executed by the defendants. A decree was granted for the amount claimed against the defendants with costs and a charge was also given on the properties, for the amount of the decree which was admitted to be the unpaid purchase money.

14. In the second case, again the decree was one on the foot of a promissory note executed by the defendants in respect of unpaid purchase money. Chandrasekhra sastry. J., held that the decree-holder could not bring the property to sale without getting the preliminary decree for sale under O. 34, C.P.C. The learned Judge observed that the decree did not create the charge but merely declared it i.e., declaring statutory charge. It is clear from these decisions that the decrees there are money decrees and they merely declared the statutory charge on hte property. So the procedure in order 34 is found to be applicable for thier enforcement. But the decree in this case is a decree for specific performance of an agreement of sale. It is not merely declaratory. It is executable. It confers rights and reliefs on both the parties to the suit.

The right to the relief is not possessed by the plaintiff alone. It may and not unfrequently, happen that after the decree has been passed for specific performance of contract, some further relief becomes necessary in consequence of one or the other of the parties committing default in the performance of something which ought under the decree to be performed by him or on his part as for instance where a vendor refuse or is unabl eto execute a proper conveyance of the property, or a purchaser to apy the purchase money. In the event of any breach of the express terms of the decree by any one of the parties the party can enforce the decree. Further the decree itself here so provides and is therefore enforceable without a further suit. The view taken by the madras High Court in Akshayalingam pillai v. Avayambala Ammal, AIR 1933 mad 386 also accords with our view To the same effect are the decisions of the Bombay High Court in bai karim Bibi v. Abde raheman, AIR 1923 Bom 26 and of the calcutta High Court in herambha chandra Maitra v. Jyotishchandra sinha, AIR 1932 Cal 579. II Maintainability of the application under s. 47 of the civil P.C.

15. The learned Advocate-General argues that an application under S. 47 is not maintainable as the dispute is one between two rival auction purchasers who represent the same person in different execution sales. On the other hand, Mr. Veerabhadrayya the learned counsel for the appellant asserts that the application clearly falls under S. 47, C.P.c. and that the section ought to be construed liberally. According to him, the petitioner is only a representative of the judgment-debtor in this suit i.e., respondents 3 and 4 and the question is one relating to execution.

16. To attract the provision of S. 47 of the civil P.C., two conditions must be fulfilled. (1) the Question must be one arising between the parties to the suit in which the decree was passed or their representatives. (2) the said question must relate tothe execution, discharge or satisfaction of the decree. Under Expln. II to S. 47 a purchaser of property under an execution of sale shall be deemed to be a party to the suit in which the decree was passed.

17. One of the essential conditions for the applicability of the section is, that the question arising in the application must be one between the parties to the suit in which the decree was passed or their representatives. Now let us proceed to examine the facts in this application filed by the petitioner under section 47, c.P.c. and test the soundness of the petitioner's plea.

18. The petitioner is the decree-holder in O.S. No. 108 of 1971 on the file of the subordinate Judge's Court, vijayawada. She obtained a money decree against her husband and minor son who are respondents 3 and 4. In execution of the decree, she filed E.P.No. 21 of 1972 and brought the property of the Judgment-debtors to sale. With the permission of the Court she purchased the property in a Court auction on 14-9-1972 and took delivery of the property under a delivery note dated 6-12-1972. Thus the decree was satisfied in O.s. No. 108 of 1971. The first respondent is the decree-holder in O.s. No. 78 of 1966, a suit for specific performance of an agreement of sale dated 11-4-1965, the decree for specific performance was passed on 14-9-1970. In execution of the said decree in E.P. No. 158 of 1974 the same property was sold on 24-4-1975 respondents 3 and 4 are the judgment-debtors. The second respondent is the auction-purchaser.

The petitioner then filed this application under S. 47 C.P.c. to declare that the auction-sale in favour of the second respondent was illegal and void. Pending disposal of the sale she obtained stay of confirmation of the sale. It is thus clear and as distinct as cheese from chalk that the dispute is not between the parties to the suit. The petitioner is undisputedly not a party to the suit O.S. No. 78 of 1966. The dispute is between two auction-purchasers viz., the petitioner and the 2nd respondent in different suits. But the learned counsel for the petitioner submits that the petitioner is the decree-holder and auction-purchaser and so retains the character of decree-holder in O.S. No. 108 of 1971. We think not. The decree in O.S. No. 108 of 1971 had already been satisfied by delivery of possession of the property to her on 6-12-1972. Nothing further remained to be done in execution of her decree. So she was no longer the decree-holder and remained to be an auction-purchaser. Therefore, the proceedings in the presetn application do not relate to execution or satisfaction of the decree obtained by her in O.S. No. 108 of 1971. On the other hand, the application relates to her right to the property for which the remedy lies in a separate suit and not in an application under sec. 47 of the civil P.c.

19. A special Bench of the madras High Court in Krishna Iyer v. Subramania Iyer AIR 1939 Mad 369 held that a suit alone was a proper remedy for the assignee of the decree-holder auction purchaser to recover the possession and not an application under S. 47, c.P.C. In that case, the decree-holder in execution of the decree purchased the property was in possession of a tenant of the Judgment-debtor. Subsequent to the auction sale the tenant surrendered the possession of the property to the judgment-debtor. The suit for possession was brought against the judgment-debtor by the assignee of the decree-holder auction -purchaser the learned judges held that 'as soon as the auction sale took place, the judgment-debtor's rights in the property ceased and when his tenant surrendered the possession to him he went into possession without any rights. He was no longer the judgment-debtor but a trespasser. Hence the suit for possession against him by the assignee of the decree-holder auction-purchaser did not fall wihtin the purview of sec. 47 and therefore was not barred by that section'.

20. In puthiya veettil chandanathil Mukkayi v. Thottathi parambil pathavumma, : AIR1955Mad173 Krishnaswami nayudu, J. Observed that when a decree-holder auction-purchaser got posession of the property, there was nothing that remained to be done in furtherance of the excution of the decree and therefore the application under S. 47, C.P.C. subsequently to recover possession from him was not maintainable since it would not be an application for execution satisfaction or discharge of the decree.

21. The Supreme Court in harnandrai Badridas v. Debidutt bhagwati Prasad : [1974]1SCR210 also held (at P. 2426):

'After all, a decree-holder purchases the property in execution of his decree with the permission of the Court. There is no reason why he should not retain his character of a party to the suit until the delivery of possession to him of the property purchased by him'.

It is thus clear that a decree-holder will shed his character as such moment the execution of the decree is over. In a case where he is the auction-purchaser, he only retains the character of a party to the suit until the possession of the property purchased by him had been delivered to him. There is no dispute that the petitioner took delivery of the property purchased by her on 6-12-1972. Therefore she shed the character as a decree-holder.

22. The learned counsel, however, submits that sec. 47 should be liberally construed as it has been enacted for the purpose of checking endless litigation and eliminating unnecessary delay which a fresh trial might entail. He invited our attention to the decision of the privy council in prosunno coomar sanyal v. Kasi Das Sanyal, (1892) 19 Ind App 166 Which was cited with approval in harnandrai Badridas v. Debidutt Bhagwati prasad : [1974]1SCR210 (supra). The Supreme Court observed: 'S. 47 in our view should be construed liberally. As far back in 1892 (1892) 19 Ind App 166 (pc) the privy council spoke strongly in favour of puttin a liberal construction on sec. 244 of the code of civil procedure of 1882 which corresponds to sec. 47 of the code of 1908. The privy council reiterated this in ganapathy v. Krishnamachariar, (1918) 45 Ind App 54: (AIR 1917 PC 121).'

So construed the petitioner would not cease to be a decree-holder, pleads the learned counsel. We are unable to accede to this contention what then is the capacity of the petitioner? She can only be a representative of her judgment-debtor, respondents 3 and 4. The 2nd respondent as the auction-purchaser in O. S. No. 78 of 1966 is also a representative of the judgment-debtors, respondents 3 and 4. Therefore, the dispute relates to the rights to two rival auction-purchasers representing the same party in different suis. Such a question in our view will not fall within the ambit of S. 47, c.P.C.

23. A Full Bench of the madras High Court in thondam Annamali Mudali v. Tiruttani ramasami Mudali, AiR 1914 mad 161 held that when the dispute between two persons who both represent the same party, the aggrieved party's remedy in such a case is only by way of a suit or their representatives, but a contest between the persons claiming under one of the parties the case does not fall within the decision of the Judicial committee in (1892) IlR 19 cal 683 (PC) (P.K. Sanyal's case ) and this being the position the dispute cannot be settled in an application under S. 47 C.P.C.'

24. The dispute there, as here is not one between the parties to the suit or their representatives, but one between the petitioner and the 2nd respondent both of whom claim under one of the parties to suit in O.S. No. 78 of 1966 viz., respondents 3 and 4 Therefore the application under section 47 C.P.C is not maintainable the learned counsel for the appellant made some what feeble attempt to contend that the 2nd respondent was not a representative of the judgment-debtor since the sale was not confirmed in his favour and that the question in this case was only between the decree-holder and the Judgment-debtors. In support of his submission, he relied on a decision of the madras High Court in official Receiver, Tirunelveli v. P.R. M. &Co.; : AIR1963Mad201 Wherein it was observed that the auction-purchaser's title remains unprotected until the sale is confirmed. But in that case, the dispute was between the Judgment-debtor and the decree-holder in the suit unlike here. Moreover, the confirmation of the sale was interrupted by the intervention of the petitioner. Therefore, we are unable to agree that the contest in the application is one between the judgment-debtor and the decree-holder in the suit. We accordingly hold that the application of the petitioner under S. 47, C.P.C. is not maintainable.

III. Applicability of the doctrine of Lispendens:

25. The learned counsel for the respondents question the very validity of the sale in favour of the petitioner in O.s. No. 108 of 1971. They plead that the sale in favour of the petitioner is hit by the doctrine of Lis pendens. The Doctrine which is incorporated in S. 52 of the the T.P. Act reads:

'52. During the pendency in any Court having authority within the limits of India excluding the state of jammu and Kashmir or established beyond such limits by the central Government of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and onsuch terms as it may impose.

Explanation:for the purposes of this section the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force'.

26. The principle of the maxim pendente lite nihil innovetur is incorporated in the section. The section provides that during the pendency of any suit in which hte right to immoveable property is in question, neither party to the litigation can transfer or otherwise deal with such property so as to affect the rights of the opponent.

27. The Explanation makes it clear that the Lis shall be deemed to commence from the date of the presentation of hte plaint and to continue until the suit or proceeding has been disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtaned. In this case, the Lis in respect of the immoveable property commenced by the institution of the suit O.S. No. 78 of 1966 and continued till the date of the sale to the petitioner on 14-9-1972. The compromise decree was entered into on 14-9-1970 the decree had not been satisfied by the date of the sale on 14-9-1972. The property was sold in execution of the decree on 24-4-1975.

28. It is, However, contended on behalf of the appellant that the Doctine of Lis pendens is not attracted to the case of a suit which resulted in a compromise decree. According to the learned counsel, the compromise decree is a creature of an agreement on which it is based and is subject to all the incidents of such agreement. Only the principles governing the construction of a contract can be applied to such an agreement. In support of the submission, our attention is invited to the decision of the Allahabad High Court in Habib mian v. Mukhtar Ahmad, : AIR1969All296 (FB) . there the question of applicability of the doctrine of Lis pendens did not arise for decision.

29. The privy council in gouri Dutt maharaj v. Sukur Mohommed, AiR 1948 PC 147 enunciated the rule that the Doctrine of Lis-pendens is applicable even to a suit which resulted in a compromise decree, provided the other requirements of S. 52 of the T.P. Act are satisfied. Section 52 of the T.P. Act or S. 2(2) to the civil P.C. draws no distinction between a contested decree and a compromise decree. We have no hesitation to hold that a transfer pendente lite, whether the decree is on contest or result of a compromise falls within the mischief of S. 52 of the T.P. Act.

30. Even after the transfer is hit by S. 52 of the T.P. Act, it is maintained that hte charge created on the property cannot be enforced having regard to the provisions of Sec. 100 of the T.P. Act, since the transfer is for consideration and wihtout notice of the charge. It is now well settled that the principle of Lis pendens applies where the plaintiff seeks to enforce a pre-existing charge and the transfer pendente lite is not protected by S. 100 of T.P. Act.

31. A Division Bench of the madras High Court in Arunachalam v. K. N. Lingaiah, : AIR1953Mad71 had occasion to consider the combined effect of Ss. 52 and 100 of the T.P. Act. That was a case of compromise decree, but the decree was not satisfied. Before the decree was satisfied, there was a purchase of the property by a third party. The learned judge observed (at P. 72):

'reading S. 100 in conjunction with S. 52 of the T.P. Act, it will be seen that a purxhase of properties subject to a charge created by a compromise decree the satisfaction or discharge of which has not been obtained or has not become barred by limitation does not get any assistance from the proviso to S. 100 of the Act even though he is a purchaser for value without notice of the charge. So long as the decree is not satisfied and is kept alive. The purchase is hit by the rule of lis pendens irrespective of whether the purchase is a bona fide transaction or not'.

In this case, the purchase by the petitioner was before the compromise decree was before the compromise decree was satisfied . Therefore the sale is clearly hit by the provisions of S. 52 of the T.P. Act.

32. It is also equally well settled that the Doctrine incorporated in section 52 of the T.P. Act is applicable to involuntary sales also. The Supreme Court in samarendra nath sinha v. Krishna Kumar nag. : [1967]2SCR18 held that it is true that S. 52 does not strictly apply to involuntary alientations like Court sales but principle of lis pendens applies to such alienations.

33. Mr. T. Veerabhadrayya, however, submits that the compromise decree does not relate to immoveable property but a money decree and so the sales in favour of the petitioner was not hit by the provisions of s. 52 of the T.P. Act. As already noticed the suit O.S. No. 78 of 1966 was a suit for specific performance of a contract of sale of immoveable property. The charge was in respect of the unpaid purchase money. We, therefore, see no real substance in the contention of the learned counsel. One arrow, if fatal, is fatal enough. The mischief of S. 52 of the T.P. Act shoots at the foundation of the application in the case.

34. In the result, the appeal fails and it is accordingly, dismissed with costs.

35. The learned counsel for the appellant makes an oral application for leave to appeal to the Supreme Court. In our opinion no substantial question of law of general importance which requires to be decided by the Supreme Court in involved in this case. Therefore, the request is rejected.

36. Appeal dismissed.


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