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2010 DIGILAW 1293 (PNJ)

Surinder Kaur v. Parminder Kaur

2010-03-26

VINOD K.SHARMA

body2010
Judgment Vinod K.Sharma, J. 1. The petitioners have invoked the jurisdiction of this Court under Article 227 of the Constitution of India, to challenge the order dated 2.4.2009, passed by the learned Motor Accident Claims Tribunal, Sangrur, vide which objections to the execution of the award of the learned Motor Accident Claims Tribunal, filed by the petitioners stand dismissed. 2. The respondent decree-holder filed a petition under the Motor Vehicles Act, claiming compensation. The learned Tribunal accepted the claim petition, and awarded a sum of Rs. 2,85,600/- (Rupees two lac eighty five thousand and six hundred only) along with interest @ 9% per annum from the date of filing of claim petition till realization. The cost of the petition was also allowed. 3. The decree-holders, thereafter filed execution application claiming an amount of Rs. 3,25,152/- (Rupees three lac twenty five thousand one hundred and fifty two only), along with future interest. The award in favour of the respondent/decree-holders, was passed on 3.12.2004, whereas execution application was moved on 2.3.2005. 4. The learned executing Court, on 20.4.2005 issued warrants for recovery of awarded amount as arrears of land revenue. 5. The learned Collector vide order dated 18.2.2006, was asked to recover the amount for payment to the claimants. 6. The property of the Judgment debtor was not attached. Thereafter, when the notice of attachment and sale of the property was issued, the petitioners filed objections, against the attachment and sale of land comprised in Killa No. 61//11/(8-0), 12(8- 0), 13(8-0), 14(8-0), and 20(8-0) measuring 40 Kanals, situated in the revenue estate of village Kila Hakima, District Sangrur, on the plea, that the objector-petitioners had purchased the land vide sale deed dated 25.9.2006 for a sale consideration of Rs. 49,20,000/- (Rupees forty nine lac and twenty thousand only), from Harjit Singh S/o Surjan Singh i.e. the judgment debtor. 7. It was the case of the objectors, that they were not the daughters of J.D. Harjit Singh, as claimed by the decree-holder. Petitioners claimed themselves to be bona fide purchaser for consideration, without knowledge of pendency of the case. 8. It was pleaded case, that judgment-debtor also owns other property, therefore, the petitioners challenged the attachment and sale of the property under their ownership. 9. Petitioners claimed themselves to be bona fide purchaser for consideration, without knowledge of pendency of the case. 8. It was pleaded case, that judgment-debtor also owns other property, therefore, the petitioners challenged the attachment and sale of the property under their ownership. 9. The objections filed by the petitioners were contested by the decree- holder, on the ground, that the objectors have intentionally purchased the land from the judgment-debtor, with an intention to help him, and to defeat the rights of the decree holders. It was denied, that the property was purchased for Rs. 49,20,000/- (Rupees forty nine lac and twenty thousand only). It was also denied, that the objectors were bona fide purchaser for consideration or that they had no knowledge regarding pendency of the proceedings against the judgment debtor. 10. Stand taken by the decree-holder was that the execution proceedings were initiated on 2.3.2005, whereas the sale deed was executed in favour of the objectors on 29.9.2006. The transfer was claimed to be fraudulent. It was also the case of the decree-holder, that the judgment-debtor had only one residential house, and no other property to satisfy the decree and the award, besides the property attached for sale. 11. The learned executing Court rejected the objection petition by recording as under :- "8. I have considered the submissions and find that the objectors cannot claim to be bona fide purchasers of the land of the JD and the alienation made by the JD Harjit Singh regarding the land owned by him by virtue of sale deed dated 24.5.2006 has to be ignored, the same having been made by the JD with a view to defeat and delay the rights of the decree holders. It has been observed by the Honble Punjab and Haryana High Court in the case of the citation Sarwan Singh v. Jagir Kaur, 2006(2) RCR (Civil) 521 that : "8. When the provisions of Section 39 of the TPA are examined in the light of principle enunciated by the Supreme Court then no doubt is left that the aforementioned provision is based on the principle of justice, equity and good conscience. It would be highly unjust to permit a party to transfer its land which is likely to be required for execution of a decree for maintenance. It would be highly unjust to permit a party to transfer its land which is likely to be required for execution of a decree for maintenance. Such a course would result into extreme injustice to the doctrine of lis pendens which is based on common law principle that any transfer made during pendency of the proceeding before the court would be subject to the result of the judgment and decree eventually passed." 12. Mr. Sarjit Singh, learned senior counsel appearing on behalf of the petitioners contended, that the impugned order cannot be sustained, as the objections filed by the petitioners have been rejected, by invoking the provisions of Section 39 of the Transfer of Property Act, which has no application to the facts of the case, as the decree in favour of the decree- holder was not of maintenance, but an award under the Motor Vehicles Act. 13. It was also the contention of the learned senior counsel appearing on behalf of the petitioners, that in view of the facts, referred to above, Section 52 of the Transfer of Property Act was also not applicable, as the transfer could not be hit by the principle of lis pendens, as in spite of the decree having been passed on 3.12.2004, the property sold was not attached before this purchase, and in fact it was attached for the first time on 3.9.2009. 14. The contention of the learned senior counsel for the petitioners, further was that purchase was made after permission was granted by the Deputy Commissioner to the vendor. The petitioners were bona fide purchaser for consideration, and the case, therefore, would also not fall, under Section 53 of the Transfer of Property Act. 15. On the contentions, referred to above, the learned senior counsel vehemently contended, that the impugned order rejecting the objections of the petitioners cannot be sustained. 16. Mr. Ashok Bhardwaj, learned counsel appearing on behalf of respondents No. 1 to 3, however, supported the order passed by the learned executing Court, by contending, that the learned executing Court did not invoke Section 39 of the Transfer of Property Act to non-suit the petitioners, but only underlying principle, and also held the transfer, after the execution application was filed, to be fraudulent to defeat the rights of the decree-holder. 17. 17. In support of the contention, that the transfer was hit by the principle of lis pendens, the learned counsel for the respondents placed reliance on the judgment of the Honble Supreme Court in the case of Usha Sinha v. Dina Ram and others, 2008(1) R.C.R.(Rent) 451 : 2008(3) R.A.J. 71 : 2008 (3) RCR (Civil) 145, wherein the Honble Supreme Court has been pleased to lay down as under :- "18. It is thus, settled law that a purchaser of suit property during the pendency of litigation has no right to resist or obstruct execution of decree passed by a competent Court. The doctrine of lis pendens prohibits a party from dealing with the property which is the subject matter of suit. `Lis pendens itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit. Rule 102, therefore, clarifies that there should not be resistance or obstruction by a transferee pendente lite. It declares that if the resistance is caused or obstruction is offered by a transferee pendente lite of the judgment debtor, he cannot seek benefit of Rule 98 or 100 of Order XXI." Reliance was also placed on the judgment of the Honble Supreme Court in the case of Sanjay Verma v. Manik Roy and Ors., 2007(1) R.A.J. 12 : 2007 (1) RCR (Civil) 408, wherein the Honble Supreme Court has been pleased to lay down as under :- "11. 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 pendente 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 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." 18. This Court in the case of Sarwan Singh v. Jagir Kaur, 2006(2) RCR (Civil) 521, has been pleased to lay down that though the provisions of Section 39 of the Act were not applicable in Punjab and Haryana, however, the provisions being based on principles of justice, equity and good conscience, these principles could be enforced to avoid injustice, being done to the decree- holder wife. 19. Finally, reliance was placed on the judgment of this Court in the case of Rattan Singh v. Ram Singh, 2003 (4) RCR (Civil) 391, wherein this Court was pleased to lay down, that every transfer of immovable property made with an intention to defeat or delay the execution is voidable. On the facts and circumstances of the said case, the transfer by way of collusive decree was held to be fraudulent. 20. On consideration, I find force in the contention raised by the learned counsel for the respondents No. 1 to 3. It may be noticed, that award in favour of the petitioners was passed on 3.12.2004, and the execution petition was filed on 2.3.2005, after that warrant for recovery as arrears of Land Revenue was issued on 20.4.2005, and the order for issuance of warrant was conveyed to the District Collector on 8.2.2006, the petitioners purchased the land only on 29.9.2006. 21. The facts referred to above, speak for itself, that the transfer was made by the judgment debtor, with an intention to defeat the rights of the decree holder. 22. The Honble Supreme Court in the case of Sanjay Verma v. Manik Rao & others (supra) has been pleased to laid down, that no question of good faith or bona fide arises in cases of transfers made during the pendency of the litigation. 22. The Honble Supreme Court in the case of Sanjay Verma v. Manik Rao & others (supra) has been pleased to laid down, that no question of good faith or bona fide arises in cases of transfers made during the pendency of the litigation. Though the provisions of Section 52 of the Transfer of the Property Act would not in letter and spirit apply to the facts of this case, as litigation was not with respect to the right to immovable property, still the underlying principles of Sections 52 & 53 of the Transfer of the Property Act read with Section 39 of the Transfer of Property Act, can be made applicable to the facts of the present case, as the transfer was in fact deliberate attempt, to defeat the rights of the decree holder to recover the amount. The award passed by the learned Motor Accident Claims Tribunal, which is a beneficial provision are akin to grant of maintenance, as the Tribunal under the Motor Vehicles Act, also grants compensation in proof of dependency on the deceased. The amount awarded is to protect the life and grant compensation for their livelihood. The learned executing court, therefore, committed no error in invoking underlying principle of Section 39 of the Transfer of Property Act to non-suit the objectors. The date of filing of the execution application and order issued to the Collector for recovery of awarded amount as arrears of land revenue, and purchase thereafter by objectors, can only lead to one conclusion that the transfer was fraudulent with an intention to defeat the rights of decree-holders, therefore, hit by Section 53 of the Transfer of Property Act. Consequently, finding no merit, this revision petition is dismissed, but with no order as to costs.