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2012 DIGILAW 502 (KAR)

S. Malleshwarrao v. Bokka Venkateshwarrao

2012-06-20

MOHAN M.SHANTANAGOUDAR

body2012
Judgment :- 1. By the impugned order, the Executing Court rejected I.A.No.3 filed by the petitioner under Order-XXI Rules-54, 64, 65 and 66 read with Section-151 of CPC for attachment of schedule properties. 2. The records reveal that the petitioner filed O.S.No.34/2001 for specific performance of an agreement of sale executed by the respondent herein in his favour in respect of properties bearing no.Sy.No.95/1, 95/2/ka, 95/3/ka, 95/ka/1/1 and 95/ka/1/2 totally measuring 4 Acres 24 guntas of Mustur Village, Tal. Gangavathi. The suit came to be decreed in part for refund of earnest money. After the decree by the trial Court, the petitioner herein filed Execution Petition No.88/2002 before the Court of Civil Judge (Sr.Dn.), Gangavathi. The respondent herein filed R.F.A.No 1072/2002 before this Court against the Judgment and Decree passed by the trial Court. Application was filed by the appellant in the appeal i.e. respondent herein for staying the decree passed by the trial court. The Division Bench in RFA 1072/2002 passed an interim order on 16.7.2003 as under: “This Court doth order that pending disposal of the above RFA, the operation and execution of the Judgment and Decree dated 26.7.2002 passed by the learned Civil Judge (Sr.Dn.), Gangavathi in O.S.No.34/01 be and the same is hereby stayed subject to appellant filing an undertaking not to alienate the suit schedule property and such undertaking to be filed within 15 days from 16.7.2003.” 3. Thereafter undertaking is given by the respondent before this Court in RFA, in accordance with the aforementioned interim order. After hearing RFA No.1072/2002 came to be dismissed on 3.2.2006. Till then, the respondent did not alienate the property. However after dismissal of RFA, the respondent alienated the suit properties in favour of his brother and brother’s sons on 10.3.2006. After dismissal of RFA, the petitioner herein filed Execution Petition No.65/2006 on 24.3.2006 for execution of the decree passed by the trial Court as confirmed in RFA. After coming to know of alienation made by the respondent in favour of his vendees, the petitioner/decree holder filed an application under Order-XXI Rules-54, 64, 65 and 66 read with Section-151 of CPC praying for an order of attachment of the suit schedule properties. The objections were filed by the respondent herein. After coming to know of alienation made by the respondent in favour of his vendees, the petitioner/decree holder filed an application under Order-XXI Rules-54, 64, 65 and 66 read with Section-151 of CPC praying for an order of attachment of the suit schedule properties. The objections were filed by the respondent herein. After hearing, the impugned order is passed by the trial Court rejecting I.A.No.3 on the ground that the respondent has not violated the undertaking given by him inasmuch as the alienation is not made during the pendency of the RFA, but the same is made after dismissal of RFA. 4. Learned advocates addressed arguments supporting their respective cases. Sri. F.V. Patil, learned advocate for the petitioner submits that the impugned order is contrary to the Explanation to Section-52 of the Transfer of Property Act, 1882 (‘the Act’ for short) inasmuch as the respondent cannot alienate the property till complete satisfaction or discharge of the decree passed in favour of the decree holder. Smt. Vidya, learned advocate for the respondent argues in support of the impugned order by contending that the alienations are made subsequent to dismissal of RFA and therefore there is no violation of the undertaking given by the respondent. She further submits that the respondent has another property bearing Sy.No.5 measuring 2 acres 32 guntas situated at Chintoli village, which can be attached and the same would satisfy the decree passed in favour of the petitioner in respect of payment of earnest money. 5. As aforementioned, the undertaking was given by the respondent herein as mentioned supra pursuant to the interim order granted by this Court in RFA No.1072/2002. Thus it is clear that the petitioner has undertaken that he will not dispose of or transfer the suit property till the matter attains finality. The matter will not attain finality merely because of the disposal of RFA No.1072/2002, but the same will continue till the decree is satisfied. 6. At this stage, it is relevant to note the provisions of Section-52 of the Act, which reads thus: “52. The matter will not attain finality merely because of the disposal of RFA No.1072/2002, but the same will continue till the decree is satisfied. 6. At this stage, it is relevant to note the provisions of Section-52 of the Act, which reads thus: “52. Transfer of property pending suit relating thereto: During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other partly thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation: For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. 7. Explanation to Section-52 of the Act and the main provision, make clear that the proceedings will continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof. In the matter on hand, the decree obtained by the petitioner is not discharged and it is not satisfied. Thus the proceedings are deemed to have been continued. If it is so, the transfer of the property made by the respondent in favour of his vendees is hit by the provisions of Section-52 of the Act. Consequently, the principles of lis pendens will duly apply to the facts of this case. Thus the proceedings are deemed to have been continued. If it is so, the transfer of the property made by the respondent in favour of his vendees is hit by the provisions of Section-52 of the Act. Consequently, the principles of lis pendens will duly apply to the facts of this case. In this view of the matter, the suit properties which are alienated by the respondent in favour of his brother and brother’s son are liable to be attached. 8. As aforementioned, the respondent’s counsel submits that the respondent owns another property measuring 2 acres 32 guntas situated in Sy No.5 of Chintoli village and the same may be attached. But the said property is also encumbered inasmuch as the respondent has taken crop loan of Rs.55,000/- from the bank and has also received Rs.50,000/- from one Mr. Tirumal Rao by mortgaging the said land. Added to it, the said property also appears to have been agreed to be sold by the respondent in favour of certain Smt. Y. Lakshmi on 12.11.2007 and the same is noted in the Encumbrance Certificate issued by the Sub-Registrar office, Gangavathi. Though learned counsel for respondent submits that the respondent would repay the loan of Rs.55,000/- plus Rs.50,000/- as mentioned supra and make the land available for attachment, the same cannot be accepted in view of the aforementioned facts. The very fact that the respondent has proceeded to sell the suit properties immediately after the confirmation of the decree by this court in RFA itself clearly reveals that the respondent is creating hurdles for the decree holder from executing the decree. As aforementioned, the property bearing Sy.No.5 is subject to an agreement of sale executed in favour of Smt. Y. Lakshmi and she may also file a suit for specific performance on the basis of such agreement of sale. Be that as it may, it is not open for the respondent at this stage to contend that it is open for the petitioner to proceed against other property. It is always open for the petitioner to proceed against other property. It is always open for the petitioner to proceed against the other properties also if need be. That does not mean that the petitioner is prohibited from proceeding against the suit properties which are the subject of the proceedings herein. Since the impugned order is illegal and arbitrary, the same cannot be sustained. It is always open for the petitioner to proceed against the other properties also if need be. That does not mean that the petitioner is prohibited from proceeding against the suit properties which are the subject of the proceedings herein. Since the impugned order is illegal and arbitrary, the same cannot be sustained. Accordingly, the impugned order stands quashed. I.A.No.3 filed by the petitioner in E.P.No.65/2006 is allowed and the suit properties shall be attached for execution of the decree. Writ Petition is allowed accordingly.