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Smt. Bela Dibya Vs. Ramkishore Mohanty - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 181 of 1966
Judge
Reported inAIR1969Ori114; 34(1968)CLT1296
ActsTransfer of Property Act, 1882 - Sections 52 and 100; Code of Civil Procedure (CPC) , 1908 - Sections 47
AppellantSmt. Bela Dibya
RespondentRamkishore Mohanty
Appellant AdvocateB.K. Pal and ;N.C. Patnaik, Advs.
Respondent AdvocateR. Ch. Mohanty, ;P.K. Patnaik, ;M. Patra and ;H. Jena, Advs.
DispositionAppeal allowed
Cases ReferredAbdul Ghaffar v. Ishtiaq Ali
Excerpt:
.....is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - if the charged property is put to auction sale before the decree is satisfied, the auction sale would be hit by lis pendens and the property in the hands of the auction- purchaser would be liable for the discharge of the maintenance decree. i am clearly of opinion that second part of section 100 is subject to section 52 of the act. as the decree had not been satisfied, the auction sale of the disputed property is hit by lis pendens......decree in favour of the appellant was passed after contest and was not a compromise decree. the charge created by such a decree is not a charge either by act of parties or by operation of law, and section 100, transfer of property act (hereinafter referred to as the act) has no application to such a decree. the charge is binding against the purchaser for value without notice; and(ii) the charge created by the aforesaid contested decree is enforceable against the auction-purchaser even if he purchased the property without notice of the charge being mentioned in the sale proclamation. the auction sale is affected by the doctrine of lis pendens under section 52 of the act.both the contentions require careful examination.3. the first question for consideration is whether the charge on lot.....
Judgment:

G.K. Misra, J.

1. One Kashinath Tiadi had two sons, Hrudananda and Rama. Bela Dibya (decree-holder) is the widow of Kama. She brought Title Suit No. 234 of 1948 in the Court of the Munsif, Kendrapara, for maintenance against her husband's son as Rama died in joint status and the entire joint family property devolved upon Hrudananda's branch. The suit was decreed and a charge was created in her favour in respect of the disputed property and other properties (Lots 1 to 4). In Execution Case No. 127 of 1959 Lot No, 1 was put to auction sale for Rs. 87-55 paise. In the proclamation for sale the charge on Lot No. 1 was not mentioned. On 16-11-59 Rajkishore Mohanty (auction-purchaser-respondent) purchased lot, No. 1 in auction sale for Rs. 200/-.

The decree-holder (appellant) withdrew her decretal dues with costs. The sale was confirmed on 23-12-59 and the sale certificate was issued on 22-1-60. Respondent took delivery of possession on 10-4-60. The decree-holder again started Execution Case No. 77/62 for Rs. 144/- and for costs against the previous judgment-debtors and the respondent. She advertised for sale all the lots of properties including lot No. 1, Respondent filed an objection Under Section 47, C. P. C. on 13-4-63 in Misc. Case No. 81/63. On 6-9-63 lot No. 3 (the disputed properly) was released from attachment and sale. Misc. Appeal No. 177/63 was filed by the decree-holder. The learned District Judge, Cut-tack, dismissed it. Against the appellate order this miscellaneous appeal has been filed by the decree-holder.

2. Mr. Pal raised the following contentions :

(i) The maintenance decree in favour of the appellant was passed after contest and was not a compromise decree. The charge created by such a decree is not a charge either by act of parties or by operation of law, and Section 100, Transfer of Property Act (hereinafter referred to as the Act) has no application to such a decree. The charge is binding against the purchaser for value without notice; and

(ii) The charge created by the aforesaid contested decree is enforceable against the auction-purchaser even if he purchased the property without notice of the charge being mentioned in the sale proclamation. The auction sale is affected by the doctrine of lis pendens Under Section 52 of the Act.

Both the contentions require careful examination.

3. The first question for consideration is whether the charge on lot No. 1 created under the maintenance decree passed on contest comes within the arnbit of Section 100 of the Act. The section runs thus--

Section 100. Charges. Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transanc-tion does not amount to a mortgage, the latter person is said to have a charge on the properly; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.

Nothing in this section applies to the charge of a trustee on the trust property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any person in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.

4. There is conflict of authority as to whether a charge created by a decree on contest comes within the purview of section 100 of the Act. The latest decision in support of Mr. Pal's contention is AIR 1968 Pat 238, Shyam Narain v. Khublal Mahto. In (1965) 31 Cut LT 932. Diwan Chitra Bhanu Singh Rai v. Balmukund Singh Rai, this Court held that the charge created by a decree of Court even after contest was by operation of law and would come within Section 100 of the Act (Para 8). In AIR 1965 SC 834, Laxmi Devi v. Mukund Kun-war, a charge was created initially by a document and ultimately by a maintenance decree over certain properties (para 2), There it was the common ground mat respondent No. 1 could claim to be a charge-holder as defined by Section 100 of the Act (para 11). As the charge originated in a document by act of parties, the case proceeded on the concession of both parties that Section 100 was applicable to the case. The Supreme Court case did not resolve the conflict. I am bound by (1965) 31 Cut LT 932 and hold that Section 100 has application to a decree passed on contest also.

5. After a thorough discussion their Lordships held in the aforesaid Supreme Court decision that the latter part of Section 100 should be deemed to include auction sales (para 18). The next question for consideration is whether the second part of Section 100 is controlled by Section 52 of the Act. This part of the section lays down that the charge shall not be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge. This provision is, however, qualified by the expression 'save as otherwise expressly provided by any law for the time being in force.' Section 52 of the Act is such a law and, as such, second part of Section 100 is controlled by Section 52 of the Act, provided it is applicable to the facts of the case,

6. Section 52 runs thus-

During the pendency in any Court having authority within the limits or 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 ba 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 on such 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. By virtue of the Explanation, the suit would be deemed to be pending until there is complete satisfaction or discharge of the decree. The crucial question for consideration, however, is whether in the suit for maintenance filed by the appellant where the decree created the charge, any right to immoveable property was directly and specifically in question. On this point there is conflict of authority. The expres-sion 'right to immoveable property' is not confined only to a right to the possession or title to or any interest in the property. It includes right affecting specific immoveable property. The charge created by the decree affects right to the immoveable proprety. Hence in a suit for maintenance asking for a charge, a right to immoveable property is directly and specifically in question. If the charged property is put to auction sale before the decree is satisfied, the auction sale would be hit by lis pendens and the property in the hands of the auction- purchaser would be liable for the discharge of the maintenance decree.

I am clearly of opinion that second part of Section 100 is subject to Section 52 of the Act. Rajgopala Chetty v. Kesava Pillai, AIR 1945 Mad 126; Hiranya Bhusan v. Gouri Dutt, AIR 1943 Cal 227; Mahesh Prasad v. Mt. Mundar, AIR 1951 All 141 (FB) and Tirthabasi v. Trinayani Dasi, AIR 1951 Orissa 306 support the aforesaid view. The contrary view on this point expressed in Abdul Ghaffar v. Ishtiaq Ali, AIR 1943 Oudh 354 (FB) does not represent the correct law.

7. Applying the aforesaid test to the facts of this case, it is clear that the auction-purchaser purchased the property for consideration and without notice of the charge. As the decree had not been satisfied, the auction sale of the disputed property is hit by lis pendens. The judgment-debtor or the auction-purchaser cannot deal with the property in any manner to adversely affect the rights of the maintenance-holder created by the charge. The objection of the auction-purchaser under Section 47 cannot be upheld.

8. In the result, the judgments of the Courts below are set aside and the appeal is allowed. In the circumstances, parties to bear their own costs throughout.


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