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2015 DIGILAW 423 (MAD)

Chelladurai v. Avudaippan Konar

2015-01-27

D.HARIPARANTHAMAN

body2015
Judgment 1. Heard both sides. 2. One Perumal, the husband of Rajamani Ammal purchased the suit property under registered sale deed dated 11.08.1969. The said Rajamani Ammal entered into an agreement of sale with one Avudaiappan to sell the property for a sum for Rs.65,000/- on 06.06.1994. 3. Since Rajamani Ammal did not fulfil her commitments, Avudaiappan filed O.S.No.232 of 1994 on the file of the Sub Court, Tirunelveli against Rajamani Ammal for specific performance on 04.08.1994. 4. After the institution of the suit, the defendant, Rajamani Ammal sold the property to one Thomas during the pendency of the suit. Hence, the said Thomas was impleaded as the second defendant in O.S.No.232 of 1994. At this juncture, the learned counsel for the first respondent herein, who is the plaintiff in the aforesaid suit, has submitted that there is an embargo placed by Section 52 of Transfer of Property Act to effect sale of the property involved in the suit. The learned counsel has taken me through Section 52 of the Transfer of Property Act and the same is extracted hereunder: "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 party 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 purposes 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." Thereafter, after contest, the suit was decreed on 25.03.1998 on merits. The decree attained finality. 5. When the suit was pending, further sale was executed by the defendants in the suit viz., O.S.No.232 of 1994 to the first appellant herein on 27.08.1997. Since the suit was decreed, as per Section 52 of the Transfer of Property Act, the sale effected by the first respondent to the second defendant on 14.08.1997, itself is void. Therefore, the further sale by the first and second defendants to the first appellant herein on 27.08.1998 is also invalid, since the suit is decreed in O.S.No.232 of 1994 as prayed for. 6. While so, the first appellant herein made a further sale of the property to the second appellant on 19.11.2008. When the first respondent herein viz., the plaintiff in the suit filed execution petition in E.P.No.47 of 2009, the same was allowed and sale was was executed by the learned Subordinate Judge in favour of the plaintiff by way of a registered document in No.1085 of 2010 on 29.04.2010. 7. While so, the first respondent herein/plaintiff filed appropriate application for delivery of property in E.A.No.914 of 2010 on 01.11.2010. While so, the appellants herein filed obstruction application in E.A.No.505 of 2011 under Order 21 Rule 97 on 18.11.2011. After hearing both sides, the Trial Court rejected the obstruction application in E.A.No.505 of 2011 on 24.09.2012. The Trial Court found that the appellants, who filed E.A.No.505 of 2011 as obstructors committed collusion by effecting the sale in the aforesaid circumstances. Thereafter, the appellants herein filed C.M.A.No.34 of 2012 against the order dated 24.09.2012 in E.A.No.505 of 2011. The appeal in C.M.A.(MD) No.34 of 2012 was also rejected on 08.11.2013 by the District Judge, Tirunelveli, confirming the order of the Trial Court. Thereafter, the appellants herein filed C.M.A.No.34 of 2012 against the order dated 24.09.2012 in E.A.No.505 of 2011. The appeal in C.M.A.(MD) No.34 of 2012 was also rejected on 08.11.2013 by the District Judge, Tirunelveli, confirming the order of the Trial Court. The appeal is against the aforesaid order dated 08.11.2013. 8. I have perused the order passed by the First Appellate Court. The First Appellate Court has found on facts that there was a collusion between the appellants herein and the respondents 2 and 3 in effecting the sales during the pendency of the suit. As rightly contended by the learned counsel for the first respondent plaintiff, the obstruction application has to be rejected in limini without going into the merits of the case in view of order 21 Rule 102. He has submitted that the obstruction application under Order 21 Rule 97 cannot be adjudicated under Order 21 Rule 98 and 100, if the sale was effected after the institution of the suit. It is relevant to extract Order 21 Rule 102. "Rules not applicable to transferee pendente lite.- Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person." 9. The learned counsel appearing for the first respondent plaintiff has relied upon decisions of this Court (i) 2001(4) CTC 755 - N.S.S. Narayana Sarma and others Vs. M/s. Goldstone Exports P. Ltd & Others and (ii) 2002(5) CTC 483 - Banumathi @ Karunaiammal Vs. A.P. Arthanari and 3 others and the decision of the Apex Court viz., (2008)7 Supreme Court Cases - 144 - Usha Sinha Vs. Dina Ram and Others, wherein, it was held that the obstruction application is not maintainable under Order 21 Rule 102, if the transfer took place after the institution of the suit and the suit is decreed. 10. I am in agreement with the submissions of the learned counsel for the first respondent plaintiff that the application in E.A.No.505 of 2011 is not maintainable. 10. I am in agreement with the submissions of the learned counsel for the first respondent plaintiff that the application in E.A.No.505 of 2011 is not maintainable. As per the decisions of this Court and the Apex Court, the obstructors cannot invoke Order 21 Rule 97 in the said circumstances, since the transfer of property took place, after the institution of the suit. Hence, the appeal deserves to be rejected. 11. On merits, both the Trial Court as well as the First Appellate Court found against the appellants. I have also found that apart from merits, the appellants have no right to maintain obstruction application in view of Order 21 Rule 102. 12. For all the aforesaid reasons, the appeal fails and the same is dismissed. NO costs. Consequently, connected miscellaneous petition is also dismissed.