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Madras High Court · body

2018 DIGILAW 1960 (MAD)

K. S. Ravi v. K. P. Manickam

2018-06-26

P.T.ASHA

body2018
ORDER : Since the issue involved in both the revision petitions are one and the same as the order challenged in CRP.(NPD).No.1484 of 2004 is consequent to the order impugned in CRP.(NPD).No.1483 of 2004, a Common Order is pronounced for both the revision petitions. The parties are referred in the array in which they are described in C.R.P.(NPD).No.1483 of 2004. 2. The decree holder in O.S.No.95 of 2000 on the file of the learned Sub Judge, Bhavani, is the revision petitioner in both the Civil Revision Petitions. C.R.P.No.1483 of 2004 arises against the order passed in E.A.No.46 of 2002 in E.P.No.14 of 2001 by the learned Sub Judge, Bhavani, wherein the application filed by the respondent under Order 21 Rule 101 and Sections 47 and 151 of the Code of Civil Procedure was allowed. C.R.P.No.1484 of 2004 arises out of the consequential dismissal order passed in E.P.No.14 of 2001 filed by the revision petitioner for executing the decree for specific performance obtained by him in O.S.No.95 of 2000. 3. A brief synopsis of the various stages of the two suits (O.S.No.95 of 2000 filed by the revision petitioner and O.S.No.122 of 2000 filed by the 1st respondent) is narrated herein below. The defendant in both the suits is the 2nd respondent Muthusamy. 04.02.1998 Muthusamy, the defendant executed a Promissory Note in favour of the 1st respondent. 20.09.1999 Agreement of sale executed by the said Muthusamy in favour of the revision petitioner. 02.05.2000 Suit O.S.95 of 2000 filed by the revision petitioner for Specific performance on the file of the Sub Court, Bhavani. On the very same day, the revision petitioner had also obtained an order of attachment of the properties of the said Muthusamy before the Judgment. 04.07.2000 The 1st respondent filed O.S.No.122 of 2000 on the file of the Sub Court, Bhavani, for recovery of amounts under the Promissory Note dated 04.02.1998. 11.09.2000 Suit O.S.No.95 of 2000 decreed in favour of the revision petitioner. 09.11.2000 1st Respondent obtained Interim Orders of attachment before Judgment in his suit O.S.No.122 of 2000. 20.11.2000 The suit O.S.No.122 of 2000 decreed in favour of the 1 st respondent. 30.01.2001 E.P.No.6 of 2001 filed by the 1st respondent for bringing the properties to sale. 26.02.2001 The revision petitioner filed E.P.14 of 2001 for execution of the Sale Deed in his favour. 20.11.2000 The suit O.S.No.122 of 2000 decreed in favour of the 1 st respondent. 30.01.2001 E.P.No.6 of 2001 filed by the 1st respondent for bringing the properties to sale. 26.02.2001 The revision petitioner filed E.P.14 of 2001 for execution of the Sale Deed in his favour. 19.06.2001 The 1st respondent filed E.A.150 of 2001 in E.P.No.14 of 2001 to stay E.P.No.14 of 2001 till the disposal of the 1st respondent's execution petition, E.P.No.6 of 2001. 20.09.2001 Property brought to sale in the Court auction and the 1st respondent purchased it. 23.11.2001 Sale confirmed in favour of the 1st respondent. 14.12.2001 Delivery of the property given to the 1st respondent pursuant to the orders in E.A.No.304 of 2001. 20.12.2001 Delivery is recorded. 14.03.2002 The 1st respondent files E.A.No.46 of 2002 in E.P.No.14 of 2001 under Order 21 Rule 101 and Sections 47 and 151 of the Code of Civil Procedure for declaration that the decree passed in O.S.No.95 of 2000 is null and void ab initio and does not effect the 1st respondent's right and title. 10.09.2003 E.A.No.46 of 2002 allowed. 10.09.2003 E.P.No.14 of 2001 is dismissed in view of the order in E.A.No.46 of 2002. It is the last two orders which are now the subject matter of the revisions. 4. The counsel for the petitioner submitted his arguments broadly under three heads: “(1) that E.A.No.46 of 2001 is not maintainable in view of the provisions of Order 21 Rule 102, the respondent being a pendente lite purchaser. (2) that the scope of intervention under Section 47 of the Code of Civil Procedure is very narrow. (3) Executing Court cannot go beyond the decree” 5. The learned counsel for the petitioner drew the attention of this Court to Paragraphs 4 and 5 of the petition filed by the 1st respondent in E.A.No.46 of 2002. A reading of this clearly shows that the 1st respondent herein is a pendente lite purchaser and therefore, in view of the provisions of Order 21 Rule 102 of the Code of Civil Procedure, a transferee pending the litigation is clearly barred from offering any resistance or obstruction to the execution of a decree. A reading of this clearly shows that the 1st respondent herein is a pendente lite purchaser and therefore, in view of the provisions of Order 21 Rule 102 of the Code of Civil Procedure, a transferee pending the litigation is clearly barred from offering any resistance or obstruction to the execution of a decree. He further drew the attention of this Court to the evidence of the 1st respondent as P.W.1, wherein the 1st respondent has contended that he had knowledge about the decree obtained by the revision petitioner even as early as on 19.06.2001, when he had filed E.A.No.150 of 2001 in E.P.No.14 of 2001 (marked as Ex.B2 in E.A.No.46 of 2001) to stay all further proceedings in E.P.No.14 of 2001 till the disposal of E.P.No.6 of 2001 filed by him for bringing the property for sale. He also pointed out that on the date when the Stay Petition was filed, the properties had not been brought for sale and therefore, the 1st respondent had full knowledge about the decree in favour of the Revision Petitioner and the pendency of E.P.No.14 of 2001, when he purchased the property in the auction sale. 6. The learned counsel would therefore submit that the 1st respondent is not only a pendente lite purchaser but also not a bonafide purchaser for value, he having purchased the property with full knowledge of the decree for specific performance obtained by the revision petitioner and the Execution Petition filed by the revision petitioner for having the Sale Deed executed in his favour. 7. In support of the aforesaid arguments, namely, the maintainability of the petition under Order 21 Rule 97 of the Code of Civil Procedure, the following Judgments have been citied by the revision petitioner : (1) 1998 (3) SCC 723 : Silverline Forum Private Limited v. Rajiv Trust and another (2) 2002 (1) SCC 662 : N.S.S. Narayana Sarma and others v. Goldstone Exports (P) Limited and others (3) 2008 (7) SCC 144 : Usha Sinha v. Dina Ram and others (4) 2003 (1) L.W. 551 : Banumathi @ Karunaiammal v. A.P. Athanari & others (5) 2003 (1) L.W. page 772 : Vijayalakshmi Leather Industries Private Limited, Chennai v. K. Narayanan (6) AIR 2011 Madras 83 : A.V. Raju v. H. Phoolchand 8. The learned counsel would further argue that the principle of lis pendens would apply even to a purchaser in a Court auction and in support of this proposition had submitted the following Judgments : (a) AIR 1967 SC 1440 : Samarendra Nath Sinha v. Krishnakumar (b) AIR 1970 SC 1717 : Kedarnath Lal vs. Sheonarain Ram and others (c) AIR 1973 SC 569 : Jayaram Mudaliar vs. Ayyasamy and others (d) 1988 TNLJ 40 : G. Rukmani Bai v. Saraswathiammal and another (e) 1989 (1) LW 207 : Sambanda Mudaliar v. Muthusamy Mudaliar (f) 2001 (1) CTC 5 (DB) : Guruswamy Nadar v. P. Lakshmi Ammal (Died) and 13 others (g) 2002 (1) MLJ 561 : K. Selvam v. Visalam Chit Fund Limited. 9. As regards the 2nd point of his arguments, the learned counsel for the petitioner would submit that the scope of interference by a Court under Section 47 of the Code of Civil Procedure is very limited. The learned Subordinate Judge has, in a petition filed under Section 47, proceeded to observe that the decree has been obtained by the revision petitioners in the suit O.S.No.95 of 2000 to deprive the 1st respondent of the fruits of the decree obtained by him in O.S.No.122 of 2000. The learned Judge has not only commented on the decree obtained by the decree holder/revision petitioner, but proceeded to dismiss the Execution Petition filed by the decree holder on the ground that his decree is in-executable. The learned counsel for the petitioner would also weave his 3rd argument into the earlier argument by contending that the Executing Court has no right to go beyond the decree. 10. In support of this argument regarding the scope of judicial intervention in an application filed under Section 47 of the Code of Civil Procedure, the learned counsel for the petitioner would rely upon the Judgment of the Hon'ble Supreme Court reported in 2001 (6) SCC 534 [Dhurandhar Prasad Singh vs. Jaiprakash University and others]. 11. Per Contra, the learned counsel for the 1st respondent put across only one argument, viz., the maintainability of the revision. It is the contention of the counsel for the 1st respondent that any order passed under the provisions of Order 21 Rule 97 of the Code of Civil Procedure is only appealable, in view of the provisions of Order 21 Rule 103 of the Code of Civil Procedure. It is the contention of the counsel for the 1st respondent that any order passed under the provisions of Order 21 Rule 97 of the Code of Civil Procedure is only appealable, in view of the provisions of Order 21 Rule 103 of the Code of Civil Procedure. In support of her argument, the learned counsel has relied on the Judgment of the Hon'ble Supreme Court reported in 2006 (4) SCC 412 [S. Rajeswari vs S.N. Kulasekaran & others]. 12. No arguments on the merits were advanced by the learned counsel for the respondent. 13. Heard the detailed arguments of the learned counsels for either parties. 14. Since the learned counsel for the 1st respondent has raised the issue of the maintainability of the revision in the light of the provisions of Order 21 Rule 103 of the Code of Civil Procedure and supported this argument with the Judgment reported in 2006 (4) SCC 412 [S. Rajeswari vs S.N. Kulasekaran & others], I will first deal with this argument. 15. The narration in the foregoing paragraphs will make it amply clear that E.A.No.46 of 2002 has been filed invoking the provisions of Order 21 Rule 97 and Sections 47 and 151 of the Code of Civil Procedure. The learned Subordinate Judge has exercised the jurisdiction vested in him under Section 47 of the Code of Civil Procedure to hold that the decree obtained by the revision petitioner in O.S.No.95 of 2004 is in-executable by dismissing E.P.No.14 of 2001, filed to have the sale executed in favour of the revision petitioner pursuant to the decree in O.S.No.95 of 2000. 16. Further, the Judgment relied on by the respondent is a case, where the petition was filed to remove an obstruction, which fell within the ambit of the provisions of Order 21 Rule 97 of the Code of Civil Procedure. However, the case on hand relates to a petition, which is filed invoking the provisions of Order 21 Rule 101 and Sections 47 and 151 of the Code of Civil Procedure and the relief claimed is as follows : “Declaring that the decree passed in O.S.No.95 of 2000 dated 11.09.2000 is null and void and ab initio and not affect the petitioner's right of title thereover;” Therefore, in my considered view, the ratio laid down in the Judgment reported in 2006 (4) SCC 412 [S. Rajeswari vs S.N. Kulasekaran & others]. will not apply to the facts of this case. 17. Having held that the challenge to the impugned order by way of a revision is maintainable let us examine the validity of the orders under challenge. 18. The 1st ground of challenge, which was raised by the revision petitioner was the maintainability of the petition under Order 21 Rule 101 of the Code of Civil Procedure, in the light of the provisions of Order 21 Rule 102 of the Code of Civil Procedure. Before proceeding to analyse the position, it would make useful reading to extract Order 21 Rule 102 of the Code of Civil Procedure : “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. Explanation.-In this rule, “transfer” includes a transfer by operation of law.” 19. A reading of this provision makes it clear that the benefit of the provisions of Order 21 Rule 98 and 100 is not available to a pendente lite purchaser. From a perusal of the records, it is clear that the 1st respondent has proceeded to purchase the property in an Auction after he had become aware of the decree for specific performance that the revision petitioner had obtained in the suit O.S.No.95 of 2000 as also the pendency of the Execution Proceedings in E.P.No.14 of 2001. The 1st respondent had in fact filed a petition to Stay all further proceedings in E.P.No.14 of 2001 on 19.06.2001, and after being fully aware of the pendency of E.P.No.14 of 2001, the 1st respondent has proceeded to purchase the property in the auction. It is therefore clear that the 1st respondent is not only a pendente lite purchaser but he is also not a bona fide purchaser for value. 20. The ratio that has been laid down in the Judgments cited by the revision petitioner is to the effect that the doctrine of lis pendens prohibits a party from dealing with the property, which is the subject matter of a suit. 20. The ratio that has been laid down in the Judgments cited by the revision petitioner is to the effect that the doctrine of lis pendens prohibits a party from dealing with the property, which is the subject matter of a suit. Lis pendens itself is treated as a constructive notice to a purchaser that he is bound by the decree in a pending suit. Rule 102 therefore clarifies that there should not be any resistance or obstruction by a transferee pendente lite and he cannot seek the benefit of Order 21 Rule 98 or 100. This exclusion of a pendente lite purchaser is based on the salutatory principle adumbrated in Section 52 of the Transfer of Property Act, which is extracted below : “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 limited) 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.” 21. When we examine the provisions of Section 52 of the Transfer of Property Act and Rule 102 of Order 21 of the Code of Civil Procedure, it is very clear that this restriction is introduced only to ensure that the rights of one of the parties to the proceedings pending before the Court cannot be prejudiced or taken away and adversely affected by the action of the other parties to the same proceeding. If such a restriction is not in place one party just with an intent to prejudice the other may dispose of the property subject matter of the litigation thereby introducing the third party interests. 22. The explanation to Rule 102 makes it clear that “Transfer” includes transfer by operation of law as well. If such a restriction is not in place one party just with an intent to prejudice the other may dispose of the property subject matter of the litigation thereby introducing the third party interests. 22. The explanation to Rule 102 makes it clear that “Transfer” includes transfer by operation of law as well. The Hon'ble Supreme Court in the Judgments reported in AIR 1970 SC 1717 and AIR 1973 SC 569 held that though Section 52 does not bring within itself the terms Court Auction and revenue sales, however, the principles of lis pendens would apply in all fours to such sales. 23. The learned Subordinate Judge has proceeded to hold that the decree obtained by the revision petitioner in O.S.No.95 of 2000 is only to thwart and defeat the decree obtained by the 1st respondent in O.S.No.122 of 2000. This finding is not only fallacious but is perverse. The revision petitioner, who had filed the suit earlier, has immediately obtained an order of attachment much prior to the filing of the suit by the 1st respondent. That apart, the 1st respondent has proceeded to purchase the property, after being fully aware of the revision petitioner obtaining a decree in O.S.No.95 of 2000 and the pendency of the execution petition for sale filed by the revision petitioner. The learned Judge has invoked the provisions of Section 47 to hold that the revision petitioner cannot execute his decree and dismissed E.P.No.14 of 2001. 24. The Hon'ble Supreme Court has dealt with the powers of the Court under Section 47 of the Code of Civil Procedure and how the same can be exercised in the Judgment reported in 2001 (6) SCC 534 (Dhuran dhar Prasad Singh v. Jai Prakash University and others. The learned Judges had observed as follows : “The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hold. Thus, it is plain that the Executing Court can allow objection under Section 47 of the Code to the executability of the decree, if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provisions of law or the law was promulgated making a decree inexecutable after its passing.” 25. The case on hand does not fall into any of the above circumstances and on the contrary is a case, where the 1st respondent has proceeded to purchase the property being fully aware of the decree in favour of the revision petitioner. 26. The observations of the learned Subordinate Judge, Bhavani, regarding the claim of the revision petitioners qua the claim of the 1st respondent amounts to revisiting the claim, which has already been decided and decreed by a Competent Court. The learned Subordinate Judge has not applied his mind to the scope of the legal provisions under Section 47 of the Code of Civil Procedure. 27. The Orders in E.A.No.46 of 2001 and E.P.No.14 of 2001 is liable to be set aside on the following grounds : (a) that a pendente lite purchaser cannot maintain a petition under Order 21 Rule 97 in view of the provisions of Rule 102 of Order 21, CPC. (b) that the learned Judge has exceeded the scope of Section 47 of the Code of Civil Procedure. (c) By dismissing E.P.No.14 of 2001, the Executing Court has gone beyond the decree. In the result, these Civil Revision Petitions are allowed on costs.