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2002 DIGILAW 1853 (DEL)

ASHOK KUMAR v. KUSUM MEHTA

2002-12-13

C.K.MAHAJAN

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C. K. Mahajan ( 1 ) THE present petition relates to property No. A-85, Ashok vihar, Phase-I, New Delhi. ( 2 ) BRIEFLY the facts of the case are that Smt. Kusum Mehta, judgment debtor No. 1 was the owner of the said property. The decree holder entered into an agreement to sell dated 9th October, 1980 with the judgment debtor No. 1 for a total consideration of Rs. 3,10,000/- which was paid to her. The decree holder on 6th November, 1980 took possession of the said property after making full consideration to the judgment debtor No. 1 and put a lock thereon. The judgment debtor No. 1 thereafter lodged a police complaint against the decree holder and got him arrested. As the decree holder narrated the correct facts before the Appropriate Authorities, the case against him stood cancelled. The decree holder thereafter filed a suit for injunction and the Court was pleased to grant status quo order in his favour. It is stated that before the order could be served upon the judgment debtor No. 1, she had managed to get possession of the property from the police. The judgment debtor No. 1 also filed a suit seeking injunction against the decree holder for dispossessing her from the property. ( 3 ) IN the year 1981 the decree holder filed a suit being Suit No. 140/81 against the judgment debtor No. 1 for specific performance and delivery of possession. An ad-interim injunction was granted in his favour. During the pendency of the suit and inspite of injunction order the judgment debtor No. 1 alleged to have sold the property to one Vijay Kumar Arora and executed papers in his favour. The decree holder apprised the facts relating to the property in question to said Vijay Kumar arora who thereafter got the property of one Balwant Rai Mehta i. e. 8975, Naya mohalla, Delhi exchanged from property in question and the judgment debtor No. 1 executed new papers of property in question in favour of Balwant Rai Mehta and others and inducted them in the property. The decree holder issued a public notice in the statesman informing the pendency of the suit and injunction. On 23rd december, 1981 an application was filed in the Court of the SDM for actual report of possession of property. The decree holder issued a public notice in the statesman informing the pendency of the suit and injunction. On 23rd december, 1981 an application was filed in the Court of the SDM for actual report of possession of property. It was reported that Balwant Rai Mehta is in possession of the property with his family members. On 24th February, 1982 the judgment debtor No. 1 made a statement before the Sub-Judge that she was still the owner and that she had only let out the property to Balwant Rai Mehta who is her relative. ( 4 ) THE judgment debtor Smt. Kusum Mehta admitted the claim of the decree holder and an application under Order 23 Rule 3 was filed. This Court vide order dated 14th October, 1983 recorded the statements of the parties and passed a decree in the said Suit No. 140/81. The judgment debtor No. 1 executed necessary documents in favour of decree holder and cancelled the General Power of Attorney given by her in favour of Balwant Rai Mehta. ( 5 ) THE present execution petition has been filed by the decree holder in relation to the decree dated 14th October, 1983 passed in Suit No. 140/81 for specific performance and delivery of possession of premises No. A-85, Ashok Vihar, Phase-I, new Delhi. Apart from the judgment debtor No. 1 Smt. Kusum Mehta, the other occupants of the property also made parties, i. e. respondents 2 to 5 to the present petition. ( 6 ) NOTICE in the petition was issued on 13th January, 1984. As respondents 2 to 4 refused to accept service they were deemed to be served and proceeded ex-parte on 10th February, 1984. The respondent No. 5, Jitender Dev filed reply and raised objections against the execution claiming that he is in possession of the premises and he was not a party to the suit. ( 7 ) IT is admitted by the objector that Smt. Kusum Mehta was the owner of the property in question. The case of the objector is that Smt. Kusum Mehta entered into an agreement dated 30th October, 1981 to sell the said property with him along with others. It is stated that the property was agreed to be sold for Rs. 3,20,000/-, out of which a sum of Rs. The case of the objector is that Smt. Kusum Mehta entered into an agreement dated 30th October, 1981 to sell the said property with him along with others. It is stated that the property was agreed to be sold for Rs. 3,20,000/-, out of which a sum of Rs. 1,70,000/- was paid and the balance amount was to be paid at the time of registration of the sale deed. She also executed other documents with respect to the sale of the said property. It is alleged that one Chaman Lal was a tenant in respect of the entire ground floor of the property in question at a monthly rent of rs. 400/ -. It is further alleged that the objector had no knowledge of the agreement to sell executed between the decree holder and judgment debtor No. 1 and the litigation between them. It is stated that the suit filed by the decree holder against the judgment debtor No. 1 was collusive and fraudulent and the compromise dated 12th October, 1983 was also fraudulent and collusive. It is contended that the decree holder is not entitled for possession of the suit property and execution of the sale deed. ( 8 ) COUNSEL for the objector has contended that the decree obtained by the decree holder was not in a suit in which any right to immovable property was directly and specifically in question, which is the essence of the rule of lis pendens and as such Section 52 of the Transfer of Property Act is not applicable. It is further contended that the decree is for the specific performance of an agreement to sell which does not of itself create any interest in favour of the decree holder in the property in question and the right of possession would accrue only after the sale deed has been executed and registered. It is contended that the decree holder and judgment debtor No. 1 have colluded with each other in order to dispossess the respondents. ( 9 ) ON the other hand Counsel for the decree holder contends that the objector has no right, title or interest in the suit premises as he has been inducted in the premises during the pendency of the suit. He contends that doctrine of lis pendens is applicable in the present case. ( 9 ) ON the other hand Counsel for the decree holder contends that the objector has no right, title or interest in the suit premises as he has been inducted in the premises during the pendency of the suit. He contends that doctrine of lis pendens is applicable in the present case. It is contended that whoever inducted in the premises during the pendency of the suit is bound by the decree and is liable to hand over possession to the decree holder. In the order dated 14th October, 1983 passed in the suit it has been clarified that if the doctrine of lis-pendens is applicable the respondents are liable to hand over possession. In the present case it is an admitted fact that respondents 2 to 5 were inducted during the pendency of the suit and for obtaining possession from them the present execution petition is the only remedy. ( 10 ) I have heard Counsel for the parties and perused the documents on record. ( 11 ) ADMITTEDLY the respondent No. 5/objector was inducted in the premises during the pendency of the suit and injunction granted by this Court. ( 12 ) THE contention raised by the objector that unless and until the sale deed is executed the decree holder is not entitled for possession is without any merit. The decree for specific performance was passed in favour of the decree holder. During the pendency of the suit injunction was granted by the Court. Respondents 2 to 5 were inducted in the suit premises. Respondents 2 to 4 were proceeded ex-parte vide order dated 10th February, 1984. The objector filed objections claiming that he was in possession of the premises on the basis of an agreement dated 30th October, 1981 and was not a party to the suit. ( 13 ) DOCTRINE of lis pendens is applicable in the present case. Whosoever is inducted in the premises is bound by the decree and is liable to hand over possession to the decree holder. The order passed by this Court on 14th October, 1983 is clear and unambiguous. ( 14 ) APPLYING the principle of lis pendens the objector and the other respondents who were inducted in the premises during the pendency of the suit are liable to hand over possession of the premises to the decree holder. The order passed by this Court on 14th October, 1983 is clear and unambiguous. ( 14 ) APPLYING the principle of lis pendens the objector and the other respondents who were inducted in the premises during the pendency of the suit are liable to hand over possession of the premises to the decree holder. Respondent No. 5 has no right, title or interest in the property. His only claim to the property is on the basis of his induction in the premises during the pendency of the suit. ( 15 ) IN the case reported as Vedachari v. Narasimha Mudali and Others, 1924 Madras 307, the Court held as under: "following the ruling in Motilal Pal v. Preo Lull Mitra, (1) and Jahar Lal Bhutra v. Bhupendra Nath Basu (2), we hold that the doctrine of lis pendens applies as regards suits for specific performance of agreement to sell immovable properties just as much as to suits for possession of immovable properties. "in Gouri Dutt Maharaj v. Sukur Mohammed and Others, AIR (35) 1948 Privy Council 147, the Court held as under: "the broad purpose of Section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or strength of weakness of the case and one side or the other in bonafide proceedings. To apply any such test is to misconceive the object of the enactment and the Court is in error where it lays stress on the fact that the agreement on which the suit is based has not been registered. " "where in a suit on an agreement seeking specific performance and alternatively a charge on the property in question a compromise decree providing in substance for the relief of charge is passed, the decree comes within the expression "any decree or order which may be made therein" in Section 52 and the fact that the plaintiffs by the terms of the compromise relinquished their rights under the agreement could not lead to a different conclusion. " ( 16 ) IN the case reported as Smt. Ram Peary and Others v. Gauri and Others, AIR 1978 Allahabad 316, the Division Bench held as under: "it may be that the subsequent transferee is entirely ignorant of any right on the part of the contractor, and also of the pendency of the suit filed against the vendor by such contractor, yet as the transfer is made to him by the vendor after the institution of the suit the contractor and, while it is pending, the subsequent purchaser cannot set up against the contractor any right from which his vendor is excluded by the decree. The effect of the doctrine of lis pendens is not to annul the conveyance but only to render it subservient to the rights of the parties in the litigation. The conveyance in favour of the subsequent purchaser thus yields to the adjudication of the rights obtained by the contractor, in the consequence of a decree obtained against the vendor in a suit for specific performance of the contract. The subsequent transferee, even though he has obtained the transfer without notice of the original contract, cannot set up against the plaintiff contractor any right for it would defeat the rule of lis pendens which is founded upon public policy. Therefore, Section 2 is not subject to Section 19 (b) of the Specific Relief Act. " ( 17 ) THE objector had no locus standi to object to the execution of the decree. He is bound by the result of the suit. Whenever a suit is pending in respect of any property, a transfer of that property by a party would be subject to the result of the suit and a suit for specific performance is certainly a suit in respect of immovable property. In the case of Gouri Dutt Maharaj (supra), the doctrine was applied to a suit for specific performance which was decreed on compromise. The conveyance in favour of the subsequent purchaser is treated as if "it never had any existence". ( 18 ) FOR the foregoing reasons, and drawing support from the decisions referred to hereinabove, the objections of the objector/respondent No. 5 are dismissed. ( 19 ) THE petition is allowed. Warrant of possession be issued in favour of the petitioner.