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Karnataka High Court · body

2009 DIGILAW 740 (KAR)

V. Dhayalan v. Muniswamy

2009-09-17

S.ABDUL NAZEER

body2009
Judgment :- This appeal is directed against the judgment and decree in O.S.No.370/1999 dated 31.10.2007 on the file of the 17th Additional City Civil Judge, Bangalore City. The appellant was the plaintiff in the said suit and the respondents were the defendants. For the sake of convenience, the parties are referred to by their respective ranking before the trial Court. 2. The subject matter of the suit is a site bearing No.39 formed in Sy.No.48/1, Haralakunte Hosapalya, Begur Hobli, Bangalore South Taluk (presently No.39, 3rd Cross, Maramma Beedi, Hosapalya, Madivala Post, Bangalore) measuring east to west 30 ft, and north to south 40 ft bounded on the east by site No.40, west by site No.38, north by 3rd cross road (25 ft. wide) and south by private property (hereinafter referred to as ‘the schedule property’). 3. It is the case of the plaintiff that the first defendant is the sole and absolute owner of the schedule property. The first defendant has executed a power of attorney on 21.8.1999 in favour of the second defendant authorising him to manage/alienate the said property. The first defendant acting through the second defendant offered to sell the schedule property to the plaintiff and the plaintiff, who was in the look out for the purchase of a site, agreed to purchase the same. Accordingly the first defendant acting through the second defendant entered into an agreement of sale dated 2.5.1996 with the plaintiff, agreeing to sell the schedule property for a total consideration of Rs.25,000/- and in furtherance of the said agreement, the second defendant received a sum of Rs.20,000/- towards advance. It is agreed that balance of the sale consideration is payable by the plaintiff at the time of execution and registration of the sale deed. In furtherance of the said agreement, the plaintiff was put in possession of the schedule property and he has been in possession of the said property since then. There was restriction for the registration of revenue lands during the said period. Therefore, a period of two years was fixed under the agreement for execution of the sale deed. The plaintiff has always been ready and willing to perform his part of the contract. But the transaction could not be completed on account of the reluctance of the second defendant to execute the sale deed. Therefore, a period of two years was fixed under the agreement for execution of the sale deed. The plaintiff has always been ready and willing to perform his part of the contract. But the transaction could not be completed on account of the reluctance of the second defendant to execute the sale deed. The plaintiff approached the second defendant on many occasions requesting him to execute the sale deed by receiving the balance of the sale consideration. However, the second defendant went on postponing the same on one pretext or the other. The plaintiff has laid foundation on the schedule property measuring 15 ft. x 12 ft. for erecting a shed. The first defendant interfered with his possession with the sole intention of selling the same to third parties for higher consideration. Therefore, he has filed the aforesaid suit for specific performance of the agreement of sale dated 2.5.1996. Alternatively, he has sought for a direction to the defendants to refund the advance amount of Rs.20,000/- together with damages of a similar sum. 4. The defendant has entered appearance in the suit and has filed his written statement. He has denied the execution of the power of attorney dated 21.8.1989 in favour of the second defendant in respect of the suit schedule property. He has also denied the execution of the agreement dated 2.5.1996 and receipt of Rs.20,000/-. He has denied all the other averments made in the plaint and has sought for dismissal of the suit. 5. On the basis of the pleadings of the parties, the court below has framed the following issues: “1. Whether the plaintiff proves that 1st defendant through his power of attorney of 2nd defendant, agreed to sell the suit property for a consideration of Rs.25,000/- and executed an agreement of sale on 2.5.1996? 2. Whether the plaintiff proves that has paid advance sale consideration of Rs.20,000/-to the 2nd defendant as power of attorney holder of the 1st defendant? 3. Whether the plaintiff proves that he is ever ready and willing to perform his part of the contract? 4. Whether the plaintiff proves that he is entitled for the specific performance of the agreement of sale? 5. Whether the plaintiff proves that alternatively he is entitled for refund of advance consideration with damages and if so, what amount? 6. Whether the 1st defendant proves that suit is barred by limitation? 7. 4. Whether the plaintiff proves that he is entitled for the specific performance of the agreement of sale? 5. Whether the plaintiff proves that alternatively he is entitled for refund of advance consideration with damages and if so, what amount? 6. Whether the 1st defendant proves that suit is barred by limitation? 7. What order or decree?” 6. The plaintiff got examined himself as P.W1 and documents Ex.P1 to Ex.P6 have been marked in his evidence. The plaintiff has also examined Sri Shanthakumar as P.W2. On behalf of the defendants, the first defendant was examined as D.W1 and documents Ex.D1 and Ex.D2 have been marked in his evidence. The court below on appreciation of the materials on record has decreed the suit in part. The court below answered issue Nos. 1 to 3 in the affirmative and in favour of the plaintiff. Issue No.4 has been held against the plaintiff. While answering issue No.4, the court below has held that plaintiff is entitled for refund of a sum of Rs.20,000/- with interest at 8% thereon from the date of the agreement till the date of realisation from both the defendants jointly and severally. The trial Court has held that the plaintiff has proved the execution of the agreement at Ex.P3. It has further held that the plaintiff has always been ready and willing to perform his part of the contract. While answering issue No.6, the court below has also held that the suit filed by the plaintiff is not barred by limitation. The only reason assigned by the court below for rejecting the prayer for specific performance of the contract is that during the pendency of the suit, the first defendant sold the suit schedule property in favour of his daughter-Sumithramma under Ex.P4-sale deed. The plaintiff has not chosen to implead Smt. Sumithramma as an additional defendant. He has not sought for declaration that the sale deed executed by the first defendant in favour of Smt. Sumithramma is null and void and not binding on him. The plaintiff has filed this appeal challenging the judgment and decree of the trial Court rejecting the prayer for specific performance of the contract. The defendants have not challenged the decree holding issue Nos.1 to 3 in favour of the plaintiff. 7. I have heard Sri Shankaralingappa Nagaraj, learned Counsel for the appellant and Sri M.M. Ashok, learned Counsel for the first respondent. The defendants have not challenged the decree holding issue Nos.1 to 3 in favour of the plaintiff. 7. I have heard Sri Shankaralingappa Nagaraj, learned Counsel for the appellant and Sri M.M. Ashok, learned Counsel for the first respondent. Though the second respondent was served, he has remained un-reprsented. 8. Learned Counsel for the appellant would contend that when the trial Court has held that plaintiff has proved the execution of the agreement of sale at Ex.P3, that he is always ready and willing to perform his part of the contract and that the suit is not barred by limitation, it ought to have directed the first defendant to execute and register the sale deed in favour of the plaintiff. It is argued that the court below had passed an interim order on I.A.Nos.3 and 4 restraining the defendants from alienating the suit schedule property to any third parties or putting up any construction thereon pending disposal of the suit. During the pendency of the suit, the first defendant has alienated the schedule property in favour of his daughter-Smt. Sumithramma under Ex.P4 sale deed dated 24.5.2005 in utter violation of the interim order. It is argued that he has not taken any permission of the trial Court to alienate the said property. It is further argued that a transferee pendent lite need not be made a party to the suit. She is bound by the decree just as much as she was a party to the suit as provided in Section 52 of the Transfer of Property Act, 1882 (for short ‘T.P.Act’). The defendants have not challenged the decree of the court below on issue Nos.1 to 3. Therefore, the court below ought to have directed the first defendant to execute and register the sale deed in favour of the plaintiff in respect of the schedule property. 9. On the other hand, learned Counsel appearing for the first respondent would contend that even without filing an appeal or cross-objection challenging the decree of the trial Court on issue Nos.1 to 3, the first respondent can support the decree of the court below. He submits that the court below was not right in holding issue Nos.1 to 3 in the affirmative. It is argued that the agreement of sale at Ex.P3 has not been proved in accordance with law. He submits that the court below was not right in holding issue Nos.1 to 3 in the affirmative. It is argued that the agreement of sale at Ex.P3 has not been proved in accordance with law. In support of his contention, he has relied on the decision of the Apex Court in RAVINDER KUMAR SHARMA VS. STATE OF ASSAM & OTHERS – AIR 1999 SC 3571 . Alternatively it is argued that even in the absence of appeal preferred by the respondents, or cross objection taken by them, this Court can set-aside part of the decree of the trial court on issues 1 to 3 under Order 41 Rule 33 of the CPC. 10. In the light of the rival contentions of the learned Counsel for the parties, the points for consideration in this appeal are as under: (i) Whether it is permissible for the first defendant to challenge part of the decree on issue Nos.1 to 3 without filing an appeal/cross objections? (ii) Whether the part of the decree on issue Nos.1 to 3 can be set-aside under Order 41 Rule 33 of CPC. (iii) Whether the court below was justified in rejecting the prayer of the plaintiff for specific performance of the agreement Ex.P3 on the ground that the transferee pendent lite has not been made a party to the suit? Re. POINT NO.(i): 11. The suit filed by the plaintiff was for specific performance of an agreement of sale at Ex.P3 dated 2.5.1996. Alternatively, he has sought for a substitutional remedy of damages and refund of earnest money of Rs.20,000/- as provided in sections 21 and 22 (1) (b) of the Specific Relief Act, 1968. The court below has decreed the suit in part. It has held that the second defendant being the general power of attorney holder of the first defendant agreed to sell the suit schedule property in favour of the plaintiff on 2.5.1996 for a consideration of Rs.25,000/- and paid Rs.20,000/- as advance. It has further held that the plaintiff was always ready and willing to perform his part of the contract and that the suit is not barred by time. However, the court below did not grant the specific remedy of specific performance of the contract. It has granted the alternative relief of return of earnest money with interest at 8% per annum thereon. It has not awarded any damages. However, the court below did not grant the specific remedy of specific performance of the contract. It has granted the alternative relief of return of earnest money with interest at 8% per annum thereon. It has not awarded any damages. Thus, the suit filed by the plaintiff was decreed in part. The plaintiff has challenged part of the decree rejecting his prayer for specific performance of the contract. 12. Learned Counsel for the appellant contends that in the absence of cross appeal or cross-objection, this Court cannot reverse or modify the part of the decree holding that execution Ex.P1 the General Power of attorney and Ex.P5, the agreement to sell have been proved and that the plaintiff was ready and wiling to perform his part of the contract. Learned Counsel for the first respondent submits that having regard to Order 41 Rule 22 of CPC, first respondent is entitled to support the decree by contending that the court below ought to have held issue Nos. 1 to 3 in favour of the defendants. For appreciating the contentions of the learned Counsel for the parties, it is useful to set out hereunder Rule 22(1) of Order 41 of Code of Civil Procedure as amended by Act No.104/1976 dated 1.2.1977: “22. Upon hearing respondent may object to decree as if he had preferred separate appeal: (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. [Explanation: A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.]”- 13. Right to take cross objection in an appeal is noting but the exercise of the same right of appeal, which is given to an aggrieved party and is not a new right conferred by Rule 22. The filing of cross objection is necessary only if the respondent wants to take any cross objection to the decree, which he could have taken by way of an appeal. However, in order to support the decree or in order to argue that the finding in respect of an issue should have been in his favour, the respondent is not required to file a cross-objection. Cross objection is not necessary to assail a finding on which decree is not founded. The first part of the rule authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the court blow. The first part thus authorises the respondent only to support the decree. It does not authorise him to challenge the decree. If he wants to challenge any part of the decree, he has to take recourse to the second part, that is, he has to file a cross objection if he has not already filed an appeal against the decree. 14. In BANARASI AND OTHERS VS. RAM PHAL – AIR 2003 SC 1989 , the Apex Court was considering an almost similar case. In the said case, it has been held that a plaintiff who files a suit for specific performance claiming compensation in lieu of or in addition to the relief of specific performance or any other relief including the refund of any money has a right to file an appeal against the original decree if the relief of specific performance is refused and other relief is granted. The plaintiff would be a person aggrieved by the decree in spite of one of the alternative reliefs having been allowed to him because what has been allowed to him is the smaller relief and the larger relief has been denied to him. A defendant against whom a suit for specific performance has been decreed may file an appeal seeking relief of specific performance being denied to the plaintiff and instead a decree of smaller relief such as that of compensation or refund of money or any other relief being granted to the plaintiff for the former is larger relief and the latter is smaller relief. The defendant would be the person aggrieved to that extent. It follows as a necessary corollary from the abovesaid statement of law that in an appeal filed by the defendant laying challenge to the relief of compensation or refund of money or any other relief while decree for specific performance was denied to the plaintiff, the plaintiff as a respondent cannot seek the relief of specific performance of contract or modification of the impugned decree except by filing an appeal of his own or by taking cross objection. Therefore, in the absence of cross appeal preferred or cross objection taken by the plaintiff/respondent the first appellate Court while dismissing the defendants appeal did not have jurisdiction to modify the decree by decreeing plaintiff’s suit for specific relief. 15. The decision relied on by the learned Counsel for the respondents in RAVINDER KUMAR SHARMA’s case (supra) does not assist the case of the respondent. In the said case, the appellant/plaintiff filed a suit for damages for malicious prosecution against respondent/defendants towards recovery of pecuniary and non-pecuniary damages. The trial Court dismissed the suit. In the appeal, the High Court held that defendants were guilty of malicious prosecution, abuse of power and unauthorised action, granted relief only in regard to pecuniary damages. The suit was dismissed in so far as nonpecuniary damages are concerned. The plaintiff filed an appeal before the Apex Court against the dismissal of his suit claiming non-pecuniary damages. The defendants did not file any appeal in regard to the amount decreed for pecuniary damages. The suit was dismissed in so far as nonpecuniary damages are concerned. The plaintiff filed an appeal before the Apex Court against the dismissal of his suit claiming non-pecuniary damages. The defendants did not file any appeal in regard to the amount decreed for pecuniary damages. Learned Counsel for the respondents/defendants contended that the finding of the High Court in regard to the prosecution being without reasonable and probable cause and it was malicious, etc., was not correct and that no decree could be passed for non-pecuniary damages. The appellant/plaintiff contended that the decree for pecuniary damages was passed on the same findings and that neither the decree for pecuniary damages nor adverse finding with regard to absence of reasonable and probable cause, malicious, etc., were questioned by the respondents by way of an appeal or by cross-objection and therefore, the said findings could not be attacked by the respondents under Order 41 Rule 22 of CPC as amended in 1976. In this background, the Apex Court held that the respondents/defendants in an appeal can without filing cross-objection attack an adverse finding upon which the decree in part has been passed against the respondents for the purpose of sustaining the decree to the extent the lower Court had dismissed the suit against the defendants. The filing of cross-objection after 1976 amendment is purely optional and not mandatory. 16. In the instant case, the suit filed by the plaintiff was partly decreed. The plaintiff was denied specific remedy of specific performance of the contract. He was granted substitutional remedy of refund of earnest money with interest at 8% per annum from the date of the agreement till realisation. Against the denial of the relief of specific performance of the contract, the plaintiff has filed this appeal. The defendant has not challenged the part of the decree holding issue Nos.1 to 3 against him. Therefore, he is not entitled to challenge said decree without filing an appeal or cross objections. The decision relied on by the learned counsel for the respondent in Ravindra Kumar Sharma’s case (supra) has no application to the facts of this case. Point No.(i) is answered accordingly. Re. POINT NO.(ii): 17. The submission of the learned Counsel for the appellant that this Court can modify the decree under Order 41 Rule 33 of the CPC is also without any merit. Point No.(i) is answered accordingly. Re. POINT NO.(ii): 17. The submission of the learned Counsel for the appellant that this Court can modify the decree under Order 41 Rule 33 of the CPC is also without any merit. For ready reference, Order 41 Rule 33 of the CPC is as under: “33. Power of Court of Appeal: The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.” 18. Law is well settled that the appellate Court finds any inconsistent, contradictory or unworkable order would be the ultimate result if the decree is not passed in favour of the appearing respondent, the appellate Court would exercise its power under Order 41 Rule 33 CPC and not otherwise. The power under Rule 33 could be exercised only when the portion of the decree appealed against is so inseparably connected with the portion not in the appeal, and a complete inconsistent decree cannot be passed unless the latter portion, is as well interfered with. The power under Order 41 Rule 33 CPC can be exercised only when, as a result of interference in favour of the appellant, it becomes necessary to adjust the rights of the parties. The power under Order 41 Rule 33 CPC can be exercised only when, as a result of interference in favour of the appellant, it becomes necessary to adjust the rights of the parties. Ordinarily the power in this rule should be limited to those cases where, as a result of the appellate Court’s interference with a decree in favour of the appellant, a further interference is required in order to adjust the rights of the parties in accordance with justice, equity and good conscience. The rule however does not confer an unrestricted right to reopen decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from. In NIRMALA BALA GHOSE VS. BALAI CHAND GHOSE- AIR 1965 SC 1874 , it has been held as under: “When a party allows a decree of the Court of First instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate Court under Order 41 Rule 33 to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed. Order 41 Rule 33 is primarily intended to confer power upon the appellate Court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders.” 19. In TUMMALLA ATCHAIAH VS. VENKA NARASINGARAO – AIR 1978 SC 725 , the Apex Court was considering a case where a suit filed by the plaintiff for setting aside of the registered assignment deed executed by him in favour of the defendant purporting to transfer the decree obtained in an earlier suit for recovery of the possession of the suit schedule properties and for mesne profits was decreed in part by the trial Court. The trial Court granted decree for cancellation of the assignment deed on payment of Rs.13,000/- by the plaintiff to the defendant. The defendant filed an appeal in the High Court. The plaintiff was a party to the appeal. He had filed a cross-objection but did not attack the decree of the trial Court making him liable to return Rs.13,000/- before he could take back possession from the defendant. The defendant filed an appeal in the High Court. The plaintiff was a party to the appeal. He had filed a cross-objection but did not attack the decree of the trial Court making him liable to return Rs.13,000/- before he could take back possession from the defendant. The defendant’s appeal was dismissed by the High Court holding that a sum of Rs.7,600/- had been paid by the defendant to the plaintiff. The Apex Court held that High Court was wrong in taking recourse to Order 41 Rule 33 CPC in interfering with the decree of the trial Court in relation to payment of Rs.13,000/-. It was held that without a specific ground in the cross objection and without payment of court fees on the said amount, he was not entitled to get any relief by the Court under Order 41 Rule 33 CPC. 20. In CHOUDHARY SAHU DEAD BY LRs. VS. STATE OF BIHAR – AIR 1982 SC 98 , it was held that the object of the Rule in question is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this Rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The rule does not confer an unrestricted right to reopen decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from. 21. In SHAKAR POPAT GAIDHNI VS. HIRAMAN UMAJI MORE (DEAD) BY L.Rs. AND OTHERS – AIR 2003 SC 1682 , the Apex Court has held that where a decree in a suit for specific performance of contract for sale of land did not direct delivery of possession to purchaser and an appeal was filed against the decree only by vendor and the purchaser chose not to challenge the decree and the person claiming to be in possession of land as a tenant who was not party to agreement for sale was not represented before the High Court, the order by High Court dismissing the appeal and further directing that the decree was to be construed as directing delivery of possession was liable to be set aside. In the course of the order, the Apex Court has held as under: “12. In the course of the order, the Apex Court has held as under: “12. The plaintiff, as noticed hereinbefore, did not question the judgment and decree passed by the trial Court. Evidently, the Court did not grant a decree for recovery of possession so far as the suit land is concerned. In that view of the matter, the High Court, in our opinion, committed a serious error in granting a relief in favor of the plaintiff in an appeal filed by defendant No.1, purporting to modify relief (a), as aforementioned; particularly in view of the fact that amongst others, the appellant claimed himself to be in physical possession of the lands in question. The appellant, indisputably was not a party to the said agreement for sale. 13. The High Court also could not have exercised its jurisdiction in issuing the said direction even under Order 41 Rule 33 of the Code of Civil Procedure inasmuch the said provision could not be invoked by one respondent as against another as therefore it was obligatory on the part of the plaintiff to file a cross objection in terms of Order 41 Rule 22 of the Code of Civil Procedure and give notice in relation thereto to the parties who claimed independent possession over the suit land.” 22. In BANARSI’s case (supra), the Apex court has held that usually the power of Rue 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate Court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate Court exercising power under Rule 33 Order 41. 23. In the present case, the court below has held that plaintiff has proved the execution of Ex.P3- the agreement to sell and that the plaintiff is ready and willing to perform his part of the obligation. Instead of granting the relief of specific performance of the contract, the Court below has directed return of eamest money with interest. The first half of the decree is not inseperably connected with the latter half of the decree. The two reliefs sought in the suit are separate from each other and one can exist without the other. The respondents not having challenged the decree to the extent it has gone against them cannot be allowed to escape from its operation. Point No.(ii) is answered accordingly. Re.POINT NO.(iii): 24. During the pendency of the suit, the first defendant sold the property in question in favour of his daughter, Sumithramma under Ex.P4 deed of sale dated 24.5.2005. Ex.P5 is the copy of the nil encumbrance certificate and Ex.P6 is the encumbrance certificate showing the sale made by the first defendant in favour of Sumithramma. Therefore, the court below has dismissed the suit on the ground that plaintiff has failed to implead the subsequent purchaser of the schedule property. The main contention of the learned Counsel for the appellant is that the sale made by the first defendant during the pendency of the suit is not binding on him having regard to Section 52 of the T.P.Act. 25. Section 52 of the T.P.Act is based on the principle “pending a litigation, nothing new should be introduced”. The doctrine of lis pendens embodied in this section is intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a Court in which the dispute on rights or interests in immovable property is pending, by private dealings that may remove the subject matter of litigation from the ambit of the power of the Court to decide a pending dispute or which may frustrate its decree. The rule is therefore based not on the doctrine of notice, but on expediency. It is immaterial whether the alienee pendent lite had, or had not, notice of the pending proceedings. The principle of lis pendens, embodied in Section 52, being a principle of public policy, no question of good faith or bona fides arises. A transferee pendent lite is bound by the decree just as must as much as he was party to the suit. 26. In SANJAY VERMA VS. MANIK ROY & OTHERS – AIR 2007 SC 1332 , the Apex Court was considering a case where the subsequent purchaser pendent lite filed an application under Order 1 Rule 10 of the CPC for impleadment to contest the suit and to permit him to file the written statement. The trial Court rejected the said application. Being aggrieved by the said order, the applicant filed a writ petition before the High Court, which allowed the writ petition. The said order was challenged before the Apex Court. The Apex Court on consideration of the matter, has held as under: “12. The principles specified in Section 52 of the T.P.Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendent lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the T.P. Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court.” 27. In GURUSAMY NADAR VS. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court.” 27. In GURUSAMY NADAR VS. P.LAKHMI AMMAL (D) BY L.Rs & OTHERS-2008 AIR SCW 3583, the Apex Court has held as under: “Normally, as a public policy once a suit has been filed pertaining to any subject matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end.” The Apex Court has further held that if the property is sold during the pendency of the litigation, even Section 19 of the Specific Relief Act cannot be pressed into service. It has been held as under: “Therefore, the question before us in this case is what is the effect of the lis pendens on the subsequent sale of the same property by the owner to the second purchaser. Section 19 of the Specific Relief Act clearly says subsequent sale can be enforced for good and sufficient reason but in the present case, there is no difficulty because the suit was filed on 3.5.1975 for specific performance of the agreement and the second sale took place on 5.5.1975. Therefore, it is the admitted position that the second sale was definitely after the filing of the suit in question. Had that not been the position, then we would have evaluated the effect of Section 19 of the Specific Relief Act read with Section 52 of the Transfer of Property Act. But in the present case, it is more than apparent that the suit was filed before the second sale of the property. Therefore, the principle of lis pendens will govern the present case and the second sale cannot have the overriding effect on the first sale. The principle of lis pendens is still settled principle of law.” 28. But in the present case, it is more than apparent that the suit was filed before the second sale of the property. Therefore, the principle of lis pendens will govern the present case and the second sale cannot have the overriding effect on the first sale. The principle of lis pendens is still settled principle of law.” 28. Coming to the facts of the present case, the Court had admittedly passed an interim order restraining the defendant from alienating the schedule property in favour of third parties. However, the defendant sold the said property under Ex.P.4 sale deed dated 24.05.2005 in favour of his daughter. It is obvious that he has not taken any permission from the court below for sale of the said property. It is no doubt true that the purchaser was not made a party to the suit nor sale deed Ex.P4 was under challenge. It is settled that a litigating party is exempted from taking notice of the title acquired during the pendency of litigation. The transferee pendente lite remains bound by the decree. Point No.(iii) is answered accordingly. 29. In the result, the appeal succeeds and it is accordingly allowed. The judgment and decree passed by the court below rejecting the prayer of the plaintiff for specific performance of the contract is hereby set aside. The alternative relief granted to the plaintiff directing the defendants to refund a sum of Rs.20,000/- with interest at 8% per annum from the date of the agreement till the date of the of realisation is also set aside. The plaintiff is directed to deposit the balance of sale consideration before the court below within three months from the date of receipt of a copy of this judgment and decree. On such deposit, the first defendant is directed to execute and register the sale deed in favour of the plaintiff in respect of the schedule property. If the first defendant fails to execute the sale deed as above, the plaintiff is at liberty to approach the court below for execution of the sale deed and get it registered. Having regard to the facts and circumstances of the case, I direct the parties to bear their respective costs. Draw the decree accordingly.