Skip to content


Suraj Bhan Vs. Gaj Raj Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 479 of 1973
Judge
Reported inAIR1981All149
ActsTransfer of Property Act, 1882 - Sections 2 and 52; Contract Act, 1872 - Sections 56
AppellantSuraj Bhan
RespondentGaj Raj Singh and ors.
Appellant AdvocateM.A. Qadder and ;N.C. Rajwanshi, Advs.
Respondent AdvocateN. Lal, Adv.
DispositionAppeal dismissed
Excerpt:
property - sale of property during pendency - sections 2d and 52 of transfer of property act, 1882 - suit for specific performance of contract decreed - executed by decree holder - property in dispute already sold in auction on basis of promissory note decreed during pendency of suit - sale is void ab initio - held, sale being invalid no applicability of doctrine of frustration. - - the supreme court has observed as follows :it is true that section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well established that the principle of lis pendens applies to such alienations. the principle of lis pendens clearly prohibits the transfer of property in any manner whatsoever. the entire proceedings of sale, therefore, being without jurisdiction..........against the judgment dated 1st january, 1973, the present appeal has been filed in this court.3. learned counsel for the appellant hat, contended firstly that section 52 of the t.p. act does not apply to an auction sale in execution of the decree of the court of competent jurisdiction. in support of this submission he has relied on section 2(d) of the t.p. act.4. the second submission of the learned counsel for the appellant is that the property in suit was attached before the judgment on 10th may, 1966, the suit for specific performance was filed on 12th august, 1966, and as such section 52 of the t.p. act could not apply. the third submission of the learned counsel is that the auction sale in his favour having been confirmed on 4th july, 1967, his sale could not be set aside or.....
Judgment:

S.D. Agarwal, J.

1. This is an execution second appeal. Briefly the facts giving rise to this appeal are as follows:--

Respondent No. 4, Khacheru Singh, entered into an agreement for sale of the property in question on l6th July, 1964 in favour of respondents Nos. 1, 2 and 3, Gaj Raj Singh, Jatat Singh and Jai Singh, Rs. 5,000/- was paid by respondents Nos. 1, 2 and 3, as earnest money and the property was agreed to be sold for Rs. 10,000/-. On 12th August, 1966 a suit was filed for specific performance of the contract of sale. This suit was decreed on 6th Sept., 1967. Thereafter the decree-holder put the decree into execution. Khacheru Singh filed an objection to the effect that the property in dispute had already been sold away in execution of the decree in suit No. 34 of 1966, Suraj Bhan v. Khacheru Singh and as such no saleable interest was left in the property and the decree could not be executed. Suraj Bhan also filed an objection contending that the sale in his favour had been confirmed and as such Section 52 of the Transfer of Property Act does not apply and, therefore, the decree passed in favour of the respondents Nos. 1, 2 and 3, cannot be executed. The case of Suraj Bhan was that a promissory note dated 10th August, 1963, was executed by Khacheru Singh in his favour and thereafter Suit No. 34 of 1966 was filed by Suraj Bhan on 11th April, 1966 on the basis of the promissory note which was decreed On 29th July, 1966. The property was attached before the judgment on 10th May, 1966, and in execution of the decree the property was sold in 12th May, 1967, which was purchased by Suraj Bhan. The sale was confirmed on 4th July, 1967 and possession was obtained by him, 4-11-67.

2. The sole question, therefore, which came up for consideration before the executing Court was as to whether the auction sale in favour of Suraj Bhan was hit by the principle of lis pendens as laid down in Section 52 of the T.P. Act. The executing Court held that Section 52 of the T.P. Act applied and as such the objection was dismissed on 29th March, 1968. Against the judgment dated 29th March, 1968, an appeal was filed before the lower appellate Court. The lower appellate Court agreed with the conclusion of the executing Court and dismissed the appeal on 1st January,1973. Against the judgment dated 1st January, 1973, the present appeal has been filed in this Court.

3. Learned counsel for the appellant hat, contended firstly that Section 52 of the T.P. Act does not apply to an auction sale in execution of the decree of the Court of competent jurisdiction. In support of this submission he has relied on Section 2(d) of the T.P. Act.

4. The second submission of the learned counsel for the appellant is that the property in suit was attached before the judgment on 10th May, 1966, the suit for specific performance was filed on 12th August, 1966, and as such Section 52 of the T.P. Act could not apply. The third submission of the learned counsel is that the auction sale in his favour having been confirmed on 4th July, 1967, his sale could not be set aside or considered to be void in the eye of law and as such the decree for specific performance was not enforceable in law. The fourth submission of the learned counsel is that the doctrine of frustation would apply to the present case as the property which was the subject matter of agreement had already been sold away. No decree for specific performance could have been passed in respect of the said property.

5. I have heard Shri Nanhey Lal, learned counsel for the respondents.

6. In so far as the first question is concerned, the relevant portion of Section 2(d) of the T.P. Act reads as follows :--

'2. Repeal of Acts.........In theterritories to which this act extends for the time being the enactments specified in the schedule hereto annexed shall be deemed to affect........

(a) to (c) .........

(d) ........,any transfer by operationof law, or by, or in execution of, a decree or order of a Court of competent jurisdiction; and nothing in the second chapter of this Act shall be deemed to affect any rule of Mohammadan Law'.

7. In my opinion, what the legislature intended by enacting Section 2(d) was that the various provisions of the Act regulating and codifying the law as to actual transfers by act of parties shall not affect the transfer by operation of law or by virtue of execution of decree, or, order of a Court of competent jurisdiction. Therefore, the applicability of Section 52 of the Transfer of Property Act cannot be excluded.

8. Even otherwise in view of the decision of the Hon'ble Supreme Court in Samarendra Nath Sinha v Krishna Kumar Nag, AIR 1967 SC 1440, wherein it has been held that even if Section 52 strictly speaking does not apply to involuntary alienation the principles of lis pendens would apply to such alienation. The Supreme Court has observed as follows :--

'It is true that Section 52 strictly speaking does not apply to involuntary alienations such as Court sales but it is well established that the principle of lis pendens applies to such alienations. (See Nilkant v. Suresh Chunder, (1885) 12 Ind App 171 (PC) and Moti Lal v. Karrabuddin, (1897) 24 Ind App 170 (PC). It follows that the respondent having purchased from the said Hazra while the appeal by the said Hazra against the said preliminary decree was pending in the High Court, the doctrine of lis pendens must apply to his purchase and as aforesaid he was bound by the result of that suit,'

9. Since the principles of lis pendens have been made applicable to involuntary alienations which will also include an auction sale in execution of decree the view taken by the Court below is in accordance with law and as such the first contention of the learned counsel is without substance.

10. In regard to the second contention also the question has been considered by the Supreme Court in Kedar Nath Lal v. Sheo Narain, AIR 1970 SC 1717. In para 16, Hon'ble Supreme Court has observed as follows :--

'If the property was acquired pendente lite, the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of acquisition. This result is not avoided by reason of the earlier attachment. Attachment of property is only effective in preventing alienation but it is not intended to create any title to the property. On the other hand, Section 52 places a complete embargo on the transfer of immovable property right to which is directly and specifically in question in a pending litigation. Therefore, the attachment was ineffective against the doctrine'.

In view of this decision of the Supreme Court the second submission made by the learned counsel for the appellant also, in my opinion, does not have any substance,

11. In regard to the third submission of the learned counsel, once the salehas been held to be void in view of Section 52 of the T.P. Act or the principle laid down therein the entire proceeding from initiation of sale till confirmation would automatically be deemed to be set aside. The mere fact that the sale has been confirmed would not take away the sale to be void in the eye of law. The mere fact that the sale has been confirmed, therefore, cannot give validity to a sale which was void at its very initiation. The principle of lis pendens clearly prohibits the Transfer of Property in any manner whatsoever. The entire proceedings of sale, therefore, being without jurisdiction cannot by the mere fact of sale being confirmed give any better title to the person in whose favour the sale has been confirmed. In the circumstances, so far as the third submission is concerned, in my opinion, is not well founded.

12. In regard to the last submission made by the learned counsel, learned counsel has relied on a decision of the Supreme Court reported in AIR 1977 SC 1226 Piarey Lal v. Hori Lal. In the said case the Hon'ble Supreme Court had laid down the principle that since the property in respect of which an agreement of sale had been executed had itself changed its character and new plots have been allotted in the consolidation proceedings, the contract was frustrated and as such no decree for specific performance could be passed. This principle would not apply to the present case. In the present case the sale itself was void in law. If the sale was void in law the plaintiff-respondents were entitled to a decree for specific performance of the contract as the title in the property did not pass to the auction purchaser by virtue of the principle of lis pendens as stated above. The case before the Supreme Court was a case where there was a valid order passed by the consolidation Court changing the nature of the property. Here the nature of the property has not been changed. The property remains as it is. Only the subsequent proceedings for sale have been held to be void in the eye of law. In the circumstances the question of frustration does not arise, and this argument of the learned counsel is also misconceived.

13. In the result, this appeal fails and is accordingly dismissed but in the circumstances of the case, parties are directed to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //