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2004 DIGILAW 327 (PNJ)

Jai Chand (Minor) (Through His Father Suresh Kumar) v. Gopal

2004-03-18

M.M.KUMAR

body2004
Judgment 1. The objector-petitioner has invoked the jurisdiction of this Court under Sec. 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) and has challenged the judgment dated 4-8-2003 passed by the learned Addl. District Judge. Yamuna Nagar, holding that the decree holder is a bona fide purchaser and the sale deed dated 10-3-1993 executed in favour of the objector-petitioner is hit by the principle of lis pendens as contemplated by Sec. 52 of the Transfer of Property Act, 1882. 2. Brief facts of the case are that decree-holder Gopal had filed Civil Suit No. 406 CS On 30-7-1991 against the Judgment-Debtor Smt. Kishni (deceased) for specific performance of an agreement to sell dated 27-5-1991 in respect of the property measuring 236 Sq. yards. The suit of the Decree-holder Gopal was decreed on 8-12-1993 in his favour by Sub-Judge Ist Class. Jagadhari. A direction was issued allowing one month time to the Judgment Debtor Smt. Kishni to execute the sale deed and get it registered in favour of the Decree Holder. The decree was ex parte. However, no sale deed was executed and the Decree holder-Respondent Gopal filed Execution petition 8 of 1994 on 9-3-1994. Before the Executing Court, the Objector-petitioner raised various objections which have been dismissed by the executing Court vide its order dated 4-4-1998 which reads as under :- "Hon ble High Court in Sunita Jains case (supra) 1996 Pun LJ 52 : (1996 AIHC 1873) held that the rule of lis pendens has been enacted to safeguard the right of the plaintiff in case defendant transfers the suit property during the pendency of the suit. Any transfer made during the pendency of the suit would be subject to the decision of the suit. No doubt at times transfer of the property during the pendency of the suit gives rise to multiplicity of the suits. This being so the subsequent alienation of the part of the suit property measuring 139 Sq. yards in favour of the applicant/ objector by way of registered sale deed dated 10-3-1993 by the same persons, who earlier executed the agreement to sell in favour of D. H. during the pendency of the Civil suit filed by the D.H. for specific performance is hit by the doctrine of lis pendens as envisaged under Sec. 52 of the Transfer of Property Act. Both the issues, are thus, answered in favour of the D.H. and against the applicant objector." 3 On appeal filed before the learned District Judge, this order has been upheld vide order dated 2-9-1993. 4. Mr. Vivek Bhandari learned Counsel for the Objector-petitioner has argued that Kishni Devi Judgment Debtor was not entitled to sell this property beyond her share and the sale-deed executed by Kishni Devi as well as Anti Devi on 10-3-1993 in favour of the Objector-petitioner has to be held to be valid. The learned counsel has pointed out that Anti Devi had appointed Suresh Kumar her son as her power of attorney along with Kishni Devi who executed the sale-deed registered on 10-3-1993. The learned counsel has argued that the Objector-petitioner has been living in the aforementioned house along with his parents. The learned counsel has alleged that Kishni Devi had deliberately suffered an ex parte decree dated 8-12-1993, which is subject matter of the execution proceedings and that the decree holder deliberately did not implead the Objector-petitioner as party in the execution. According to the learned counsel the Objector-petitioner has already filed a civil suit which is pending adjudication before the Civil Judge. 5. I have thoughtfully considered the submissions made by the learned counsel and am of the view that the Objector-petitioner has failed to show the share of Anti Devi in the property in dispute. Despite the framing of various issues by the executing Court, the Objector-petitioner has failed to prove the share of Anti Devi. It is further pertinent to mention that the principle of lis pendens as contemplated by Sec. 52 of the Act would come in play. The sale-deed in favour of the Objector-petitioner was executed and registered on 10-3-93 whereas the Civil Suit No. 406 of 1991 was instituted on 30-7-1991 and the judgment and decree was passed on 8-12-1993. It is thus obvious that the sale-deed was executed during the pendency of the civil suit. Sec. 52 of the Act incorporates the doctrine of lis pendens which has been the subject matter of a large number of judgments. It is well-settled that the transfer of any immovable property during the pendency of the civil suit without permission of the Court would be hit by the principle of lis pendens and the decree passed by the Court would not be adversely affected. It is well-settled that the transfer of any immovable property during the pendency of the civil suit without permission of the Court would be hit by the principle of lis pendens and the decree passed by the Court would not be adversely affected. Reliance in this regard may be placed on a recent judgment of the Supreme Court in the case of Bibi Zubaida Khatoon V/s. Navi Hassan Saheb, (2004) 1 SCC 191 : (AIR 2004 SC 173). The earlier view taken by the Supreme Court in Savitri Devi V/s. District Judge Gorakhpur, (1999) 2 SCC 577 : (AIR 1999 SC 976) has also been referred and the view taken in Sarvinder Singh V/s. Dalip Singh, (1996) 5 SCC 539 has been followed. It is further pertinent to mention that in Ram Lakhan Singh V/s. Deputy Director of Consolidation 1986 Sup SCC 682, it has been held that where 1/3rd share of the entire plot in dispute has been claimed a transferee during the pendency of the proceeding of the Civil Suit would be bound by the litigation in respect of the entire plot. On the basis of precedent as well as the principles. I am of the view that the instant petition is devoid of merit and is thus liable to be dismissed. For the reasons recorded above this petition fails and the same is dismissed. Petition dismissed