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Periamurugappa Asari and anr. Vs. Manicka Chetty - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in87Ind.Cas.213; (1925)49MLJ68
AppellantPeriamurugappa Asari and anr.
RespondentManicka Chetty
Cases ReferredLokenath v. Achitananda
Excerpt:
- - jaladhar deari 14 cwn 332. in this case i am satisfied that during the progress of the suit which was honestly instituted, the parties entered into a collusive agreement with the express object of defeating the rights of the auction purchaser at the court sale......munsif has held that the doc-trine of lis pendens has no application, because the decision in the previous suit was the result of a collusive agreement entered into between the parties to that suit. i cannot agree with the view which the subordinate judge has taken, to which i shall presently refer. he has not given any finding on the point whether there was collusion. i have therefore examined the evidence myself under section 103, and order 41, rule 24, civil procedure code, and i have come to the conclusion that the district munsif's finding is correct. if it is proved that the carpenters and arunachallam chetty, the plaintiffs and the 1st defendant respectively in that suit, entered into an agreement for the purpose of defeating the rights of the auction purchaser, thinnappa chetty,.....
Judgment:

Venkatasubba Rao, J.

1. The earlier portion dealing with a separate appeal being unnecessary for the purpose of this report has been omitted. There is a further question that arises in the other Second Appeal. O.S. No. 480 of 1913 had previously been filed by the carpenters, that is the present defendants, In that suit they claimed S. No. 32 on the ground that it was carpenter's inam and asked that the defendants in that suit should be directed to give up possession of it. There were four defendants and the 1st defendant Arunachallam Chetty was interested in plots 1 and 2. That suit was filed on 27th August, 1913. In execution of a decree against Arunachallam Chetty, these plots were sold and Thinnappa Chetty purchased them in Court-auction on the 10th September, 1914. Although the interest of Arunachallam,' Chetty passed to Thinnappa Chetty, the latter was not brought on the record of that suit and a decree was passed against the original defendants including Arunachallam Chetty on 16th November, 1915.

2. The contention of the appellants is that the alienation in favour of Thinnappa Chetty was made pendente lite and his purchase is therefore affected under Section 52 of the Transfer of Property Act by lis pendens. Both the District Munsif and the Subordinate Judge have overruled this contention but on different ground's. The District Munsif has held that the doc-trine of lis pendens has no application, because the decision in the previous suit was the result of a collusive agreement entered into between the parties to that suit. I cannot agree with the view which the Subordinate Judge has taken, to which I shall presently refer. He has not given any finding on the point whether there was collusion. I have therefore examined the evidence myself under Section 103, and Order 41, Rule 24, Civil Procedure Code, and I have come to the conclusion that the District Munsif's finding is correct. If it is proved that the carpenters and Arunachallam Chetty, the plaintiffs and the 1st defendant respectively in that suit, entered into an agreement for the purpose of defeating the rights of the auction purchaser, Thinnappa Chetty, and that in pursuance of that agreement a decree was allowed to be passed in favour of the carpenters these facts would be sufficient to establish collusion which would render the rule of lis pendent inapplicable. The fact that the decree was made in pursuance of a compromise does not exclude the application of Section 52, provided however that such compromise is not tainted by fraud or collusion. Annamalai Chettiar v. Malayandi Appaya Naick : (1906)16MLJ372 . A suit may be collusive even at its very inception or a decree may be obtained by collusion in a suit which was honestly begun. Krishnappa v. Shivappa ILR (1907) B 393. Seth Hukum Chand v. Raja Ran, Bahadur Singh (1919) 4 Pat LJ 580 and 598 and Tangor Majhi v. Jaladhar Deari 14 CWN 332. In this case I am satisfied that during the progress of the suit which was honestly instituted, the parties entered into a collusive agreement with the express object of defeating the rights of the auction purchaser at the Court sale. In paragraphs 26 and 30 of the Munsif's judgment, he deals with this point fully and I entirely agree with the reasons which he gives for his conclusion. The evidence of P.W. 2 fully supports the view of the District Munsif and he was right in acting upon it. The circumstances and probabilities also show that the decree was the result of a collusion. It is unnecessary to go into this matter more fully.

3. I have said that the Subordinate Judge also has held on the question of lis pendens against the defendants but for different reasons. In his opinion the subject-matter of the previous suit and the present suit is not identical and he has on that ground held that Section 52 has no application. I do not think that this view can be supported. The contest in both the suits related to the same land. It was described as S. No. 32. The carpenters attempted in the previous suit to get possession of what is known as S. No. 32 of its identity there can be no doubts alleging that it was carpenter's inam. In the present suit again the dispute was about this very plot and the question had to be determined whether it was or was not carpenter's inam. It is doubtless true that in the previous case no plan was filed and no boundaries were given. But it is reasonably certain that the claim was put forward in regard to the plot now in dispute. The theerva was given as Rs. 0-13-0 and the extent was given as 0.26. This description applies to the suit land. I do not think that there was in the previous suit such misdescription as to render the doctrine of lis pendens inapplicable. Lokenath v. Achitananda (1909) CriLJ 391.

4. As, however, I. have held that Thinnappa Chetty is not bound by lis pendens for the reasons given by the Munsif, S.A. No. 1754 of 1922 fails and is dismissed with costs.


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