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Andhra High Court · body

2000 DIGILAW 197 (AP)

K. Bhoom Reddy v. Sulochana Bai

2000-03-16

V.ESWARAIAH

body2000
V. ESWARAIAH, J. ( 1 ) ALL these appeals arise out of similar and common orders dated 10-4-1995 in different execution Applications filed by the appellants herein in E. P. No. 19 of 1989 on the file of the Subordinate Judge, Bodhan in os. No. 170 of 1984. All the appellants are the claim petitioners before the Subordinate judge, Bodhan in different Execution applications in the same E. P. No. 19 of 1989 and the respondents are one and the same, and therefore, all these appeals are disposed of by a common order. ( 2 ) THE 1st respondent Smt. Sulochana bai is the wife of the 2nd respondent sri Maruthi Rao. The 1st respondent filed o. P. No. 1620 of 1981 against the 2nd respondent on the file of the Subordinate judge, Nizamabad stating that she married the defendant in 1969 and the defendant deserted her and O. P. No. 49 of 1969 filed by her husband for divorce was dismissed, which was reversed by the District Court, nizamabad in C. M. A. No. 6 of 1974, and against which, she filed an appeal before the High Court and the High Court allowed her appeal confirming the order of the Sub-Court in AAO. No. 40 of 1977 and again, her husband filed another petition in op. No. 532 of 1981 in the Sub-Court reiterating the same false allegations for divorce and she is residing from 1969 onwards with her parents without any maintenance from her husband, and the 2nd respondent is bound to provide maintenance for the 1st respondent, and stated that her husband owns about ac. 39-24 gts. of agricultural lands and a house bearing No. 1-86 at Allapur village, banswada Taluka, which are shown in schedule a of the OP, and the value of the property was shown as Rs. 5,00,000/- and stated that she is entitled at the rate of rs. 200/- per month towards maintenance for the past 3 years and also entitled for future maintenance at the rate of Rs. 500/- per month and as the defendant intends to sell away the properties to deprive her of maintenance, she prayed that a charge shall be created against the said property. 200/- per month towards maintenance for the past 3 years and also entitled for future maintenance at the rate of Rs. 500/- per month and as the defendant intends to sell away the properties to deprive her of maintenance, she prayed that a charge shall be created against the said property. She further stated that she was a pauper and she has no property and income except the property shown in the schedule and she cannot pay the court-fee and prayed that she may be allowed to sue in pauperism for the past maintenance for 3 years from 1-11-1978 to 31-10-1981 at the rate of rs. 200/-per month, which comes to rs. 7,200/-, and future maintenance at the rate of Rs. 500/- per month for one year, which comes to Rs. 6,000/-, and future maintenance from the date of suit at the rate of Rs. 500/- per month and a charge be created against the schedule property of her husband for payment of the maintenance. ( 3 ) THE O. P. was filed on 10-11-1981 and the suit was numbered as O. S. No. 170 of 1984 on 12-11-1982 allowing the 1st respondent to sue in pauperism. Written statement was filed on 14-3-1983. The suit was decreed on 14-12-1987. The 1st respondent filed E. P. No. 19 of 1989 on the file of the Subordinate Judge, Bodhan in the said O. S. No. 170 of 1984 for the sale of the property, against which, a charge Was created. When the 1st respondent has taken out a publication for the sale of the above said lands in E. P. No. 19 of 1989 in execution of the maintenance decree against her husband, different claimants, i. e. , the appellants herein, filed different claim applications under Order 21 Rule 58 CPC for the relief of raising the attachment effected on 16-3-1990 in E. P. No. 19 of 1989 in respect of the lands purchased by them, which are situated at Allapur village, banswada Taluka. In each of the claim applications filed by the appellants, they have stated that they are the owners and possessors of the lands purchased by them on different dates ranging from 2-11-1982 to 13-2-1984 for a consideration vide different registered sale deeds and since the date of purchase, they are in possession of the said lands and they came to know about the maintenance decree, when the 1st respondent has taken up a publication for the sale of the said lands in execution of her maintenance decree against the 2nd respondent, and so, the 2nd respondent has no subsisting right or possession over the said lands purchased by them and they are not aware of the suit filed by the 1st respondent and also the decree obtained by her for her maintenance, and hence, they requested to raise the attachment in respect of the lands purchased by them. ( 4 ) THE 1st respondent herein filed a counter in all the applications stating that the appellants have not purchased these lands from her husband before filing of the suit and she filed OP. No. 1620 of 1981 against her husband on 241-1981 for future maintenance with a prayer to create a charge over the said lands and the said O. P, was registered as O. S. No. 170 of 1984, which ultimately decreed on 14-12-1987 as prayed for; and therefore the sale transactions after filing of the suit are illegal and hit by Us pendens as there was a charge against the said properties. ( 5 ) THE claim applications were considered in detail and evidence was also recorded, and after considering the oral and documentary evidence on record, the learned Subordinate Judge, Bodhan considered the point as to whether the attachment effected on the petition schedule lands on 16-3-1990 be raised and the same is liable to be deleted from the proposed sale in E. P. No. 19 of 1989 or not. ( 6 ) THE contention of the 1st respondent before the Court below was that the OP was filed in forma pauperis on 10-11-1981 and the same was numbered as OS. ( 6 ) THE contention of the 1st respondent before the Court below was that the OP was filed in forma pauperis on 10-11-1981 and the same was numbered as OS. No. 170 of 1984; the said suit was contested for a quite long time; finally, the 2nd respondent remained ex parte; the judgment and decree were passed on 14-12-1987; the suit lands were specifically mentioned in the judgment and deree; there was a charge over the suit lands, which dates back to the filing of the op i. e. , on 10-11-1981; as there was a charge created on the suit lands as on 10-11-1981, to which her husband was the owner, and all the appellants herein have purchased the said lands subsequent to the creation of the charge over the said lands and the suit schedule lands were attached on 16-3-1990 in EP. No. 19 of 1989, all the sale transactions under different sale deeds are hit by Us pendens under Section 52 of the Transfer of property Act. ( 7 ) IT was the contention of the appellants before the Court below that the purchasers are not hit by Section 52 of the Transfer of property Act, as the said immovable properties are not directly and specifically in question in the suit filed for the maintenance. ( 8 ) THE Court below considered the points as to whether the lands were purchased during the pendency of the suit and whether there was any collusive character of the husband and wife in the said suit and whether the said immovable properties are directly and specifically in question in the said suit; and whether there are any other parties having right under the decree in the suit. ( 9 ) THE Court below, after considering the oral and documentary evidence on record, dealing with the execution applications in a detailed manner, and relying upon the judgments in Jayaram Mudaliar vs. Ayyaswami and Arunachalam vs. K. N. Lingiah and Bros. ( 9 ) THE Court below, after considering the oral and documentary evidence on record, dealing with the execution applications in a detailed manner, and relying upon the judgments in Jayaram Mudaliar vs. Ayyaswami and Arunachalam vs. K. N. Lingiah and Bros. held that undoubtedly a charge was created in respect of the suit schedule property as specifically mentioned in the decree and the petition schedule lands in different execution applications are purchased by the appellants herein while the suit was pending, where there was a charge created over the said immovable properties and the said sale transactions during the pendency of the charge are hit by Sections 52 and 100 of the Transfer of Property Act, and accordingly, all the claim applications filed by the appellants herein were dismissed by the learned Subordinate Judge, Bodhan on 10-4-1995. Questioning the said orders, all these Civil Miscellaneous Appeals have been filed by the appellants herein. ( 10 ) THE learned Counsel for the appellants cited several judgments, which have no bearing on the issue in question, as the said judgments do not relate to the cases where charge has been created in respect of the maintenance cases filed by the wife. ( 11 ) ON the other hand, the learned counsel for the 1st respondent cited the cases in Nagubai vs. B. Shama Rao, Jogarao vs. Chinnayya Rajagopala Chetty vs. Kesava Pillal mahesh Prasad vs. Mundar, etc. ( 12 ) IN Mahesh Prasad s case, a Full Bench of the Allahabad High Court held that where an order for sale of the property in enforcement of the charge is made, a definite interest is created in favour of the judgment-creditor and such an order is binding not only against the judgment- debtor but also against his privies including the purchaser for value. The Full Bench of the Allahabad High Court held that as per the doctrine of Us pendens under Section 52 of the Transfer of Property Act, the Us continues so long as the decree is not discharged or satisfied and the lis ends with the passing of the decree and any transfer made by the judgment-debtor and the transferees are bound by the decree, irrespective of the fact that they had no notice of the charge created in the suit. ( 13 ) SRI M. Chandrasekhara Rao, the learned Counsel for the 1st respondent relied upon a direct judgment of the supreme Court in Nagubai s case, wherein a similar issue was involved in respect of a suit for maintenance with a prayer to create a charge, and the Supreme Court held that the properties, which are transferred pending the suit, are directly in question and the Us commences on the date of the plaint and not on the date of the decree, which creates the charge. The question that arose before the Supreme Court was that the plaint in the said case was filed similar to this claim to create a charge over the properties and the claim was filed on 6-6-1919 and certain properties were sold on 30-1-1920, which would prima facie fall within the mischief of Section 52 of the transfer of Property Act. In that case also, the suit was filed in forma pauperis and a similar contention was raised that the lis will commence only when the suit was registered but not on the date of filing of the OP. But, their Lordships held that the suit is filed for maintenance with a prayer to create a charge on the specified properties, and therefore, the immovable properties are directly in question and the Us commences on the date of the plaint and not on the date of the decree which creates the charge. There also, similar contentions were raised stating that the suit for maintenance and the sale in execution of the decree passed therein are all collusive and Section 52 of the Transfer of Property Act has no application. But, the said contentions were repelled by their Lordships on the similar facts and circumstances of the case. ( 14 ) IN Jogarao s case (supra), the Madras high Court held that the policy which underlies Section 52 is clear that once litigation has been launched, any transfer subsequent thereto must be subject to the result of that litigation, and further held that there is no reason to make any distinction in the case of the suits filed by the paupers relating to immovable property between the application for leave to sue as a pauper and the plaint itself, and the two are deemed to be one and the same, when the application for leave is granted. ( 15 ) IN Chetty s case (supra), the Madras high Court held that where a Hindu of a deceased coparcener filed a suit for maintenance against the surviving coparceners and for charge therefor on the family property mentioned in the plaint, and during the pendency of that suit, the surviving coparceners executed a mortgage of that property in favour of a third party, the mortgage would be affected by the charge granted in the widow s suit, even if the third party mortgagee took the mortgage without notice of the suit, and the mortgage is hit by the doctrine of Us pendens under Section 52 and the widow is entitled to proceed against the mortgaged property also, as the mortgage is hit by section 52 of the Transfer of Property Act. ( 16 ) IN view of the aforesaid rulings, I do not see any merits in any of the contentions of the learned Counsel for the appellants and the appeals are liable to be dismissed. ( 17 ) HOWEVER, the learned Counsel for the appellants submits that as against 14 claim petitions, two claim petitions were ended in giving up their claim over the property, and therefore, the husband is having the said properties, which were given up in the two claim petitions, and in the interest of the bona fide purchasers, this court may be observed and advised the decreeholder to proceed against the properties of the husband at the first instance and then, issue a notice to the appellants herein so as to enable them to pay the amounts to the satisfaction of the decree. On the other hand, the learned counsel for the 1st respondent resisted to make any observation, as it is always open for the appellants to come forward to pay the decretal amount and any observation made by this Court will lead to further complications in getting the execution of the decree. I, therefore, do not propose to make any observations in this regard. ( 18 ) IN the result, the appeals are dismissed.