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Rabindra Nath Das Vs. Sarat Chandra Parui - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 10 of 1963
Judge
Reported inAIR1971Cal159,74CWN952
ActsTransfer of Property Act, 1882 - Section 52
AppellantRabindra Nath Das
RespondentSarat Chandra Parui
Appellant AdvocateKalipada Sinha and ;Provas Kumar Sen, Advs.
Respondent AdvocateRajesh Chandra Ghosh, Adv.
DispositionAppeal allowed
Cases ReferredNagubai Ammal v. B. Shama Rao
Excerpt:
- .....and that it should be dismissed. this contention was accepted by the learned munsif and, on appeal, the learned munsif's decision, dismissing the plaintiff's suit, was affirmed by the learned subordinate judge.3. on second appeal to this court, however, that decision was reversed and the plaintiff's suit was decreed on the sole ground that the acquisition of the plaintiff's right under the agreement in question by the defendant having taken place during the pendency of this suit, it was hit by the doctrine of lis pendens and could not affect the plaintiff.4. in our view, however, the above reasoning would not be sound. the doctrine of lis pendens cannot be availed of by the transferor and it is really intended for the protection of the other party, that is, the party in the suit.....
Judgment:

P.N. Mookerjee, J.

1. The appellant before us was the defendant in the Instant suit for specific performance. The suit was instituted by the plaintiff respondent for specific performance of an agreement of reconveyance of immovable property.

2. During the pendency of the suit, however, the right of the plaintiff under the said agreement was sold in auction in execution of a rent decree against him and purchased by the present appellant. Upon that footing, it was contended that the plaintiff's right, title and interest under the disputed agreement having vested in the defendant, the suit was no longer maintainable and that it should be dismissed. This contention was accepted by the learned Munsif and, on appeal, the learned Munsif's decision, dismissing the plaintiff's suit, was affirmed by the learned Subordinate Judge.

3. On second appeal to this Court, however, that decision was reversed and the plaintiff's suit was decreed on the sole ground that the acquisition of the plaintiff's right under the agreement in question by the defendant having taken place during the pendency of this suit, it was hit by the doctrine of lis pendens and could not affect the plaintiff.

4. In our view, however, the above reasoning would not be sound. The doctrine of lis pendens cannot be availed of by the transferor and it is really intended for the protection of the other party, that is, the party in the suit other than the transferor. (Vide Shyam Lal v. Sohan Lal, ILR 50 All 290 = (AIR 1928 All 3) and Jogesh Chandra Mondal v. Tarulata Ghosh, (1956) 60 Cal WN 1089. See also the decision of the Supreme Court, reported in Nagubai Ammal v. B. Shama Rao, : [1956]1SCR451 , which substantially supports this view.) The plaintiff, therefore, cannot take advantage of this doctrine and it cannot aid him or operate to his benefit. The admitted position is that the plaintiff haslost his right under the agreement in question, on which his claim for relief in the instant suit was based. He has, accordingly, been non-suited and has no longer any locus standi to maintain or continue the present suit.

5. Upon the above view, we would allow this appeal, set aside the judgment and decree of this Court, passed in S. A. No. 1579 of 1955, and restore those of the two courts below, dismissing the plaintiff's suit.

6. There will be no order for costs in any court.

M.M. Dutt, J.

7. I agree.


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