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2024 DIGILAW 1848 (MAD)

Ashok Kumar v. Amsu

2024-08-06

R.VIJAYAKUMAR

body2024
JUDGMENT : PRAYER: The Civil Miscellaneous Second Appeal has been filed under Order 43 Rule 1 r/w Section 100 of Civil Procedure Code to allow the civil miscellaneous second appeal and set aside the fair order and decreetal order dated 08.08.2019 made in C.M.A.No.7 of 2017 on the file of the Additional District Judge, Dindigul reversing the fair order and decreetal order dated 21.12.2016 made in E.A.No.23 of 2014 in E.P.No.95 of 2013 in O.S.No.508 of 2010 on the file of the Principal Subordinate Judge, Dindigul with costs through out and thus render justice. The decree holder in a suit for specific performance in O.S.No. 508 of 2010 on the file of the Principal Subordinate Court, Dindigul is the appellant herein. (A) Facts leading to the filing of this second appeal are as follows: 2. The defendant in the suit namely Pitchaimuthu is the absolute owner of the property. The plaintiff had entered into an unregistered sale agreement with the said Pitchaimuthu on 03.11.2009 for purchasing the said property. Since the defendant had not executed a sale deed pursuant to the sale agreement, the plaintiff had filed O.S.No.508 of 2010 seeking specific performance of the contract. 3. The defendant had received summon in the suit and had appeared through an Advocate. Along with the suit, the plaintiff had filed I.A.No.578 of 2010 seeking interim injunction restraining the defendant from alienating the suit schedule property. In the said application, the defendant sought time on 24.01.2011, 14.03.2011 and 15.04.2011 for filing a counter. However, counter was not filed. The defendant had executed a sale deed in favour of the third party, who is the claim petitioner herein, on 18.05.2011. Thereafter, the defendant was set exparte and an order of interim injunction was granted on 15.07.2011. A decree for specific performance was passed on 12.11.2011. 4. The decree holder had filed E.P.No.34 of 2012 for execution of sale deed and a sale deed came to be executed by the Court on 07.03.2013. Thereafter, the decree holder had filed E.P.No.95 of 2013 for delivery of possession. The judgment debtor was served through paper publication. The Ameen had returned the delivery warrant on the ground that a third party is in possession of the property. 5. Thereafter, the decree holder had filed E.P.No.95 of 2013 for delivery of possession. The judgment debtor was served through paper publication. The Ameen had returned the delivery warrant on the ground that a third party is in possession of the property. 5. One Amsu had filed an application under Order 21 Rule 97 of C.P.C in E.A.No.23 of 2014 contending that she is a bonafide purchaser for valuable consideration from the judgment debtor through a sale deed dated 18.05.2011. However, the said application was dismissed by the Execution Court on the ground that she is a pendente lite purchaser. 6. The obstructor had filed C.M.A.No.7 of 2017 before the Additional District Judge, Dindigul. The appeal was allowed by the learned District Judge on 08.08.2019 on the ground that the plaintiff is a bonafide purchaser for valuable consideration and therefore, Section 19(b) of the Specific Performance Act prevails over Section 52 Transfer of Property Act. It further found that when the plaintiff had entered into an unregistered agreement with the defendant, already registered sale agreement was in favour of one Paulraj, who is the husband of the present claim petitioner. Therefore, the suit for specific performance has been filed in collusion with the plaintiff. 7. Based upon the above said observations, the appeal came to be allowed. Challenging the same, the present second appeal has been filed by the decree holder. 8. The second appeal was admitted on the following substantial question of law: Whether the Courts below are right in entertaining the application filed under Order 21 Rule 97 of C.P.C in view of the prohibition contained under Order 21 Rule 102 C.P.C barring pendente lite purchaser from setting up independent title in execution proceedings? (B) Contentions of the counsels appearing on either side are as follows: 9. According to the learned counsel appearing for the appellant, the present claim petitioner is not a bonafide purchaser for valuable consideration. After receipt of notice in the suit and in the interim injunction application, the defendant had not filed a counter and he was set exparte and thereafter, he had alienated the property in favour of the present claim petitioner. Therefore, when the sale was effected by the defendant, suit was pending and the defendant had knowledge about the pendency of the interim injunction application also. 10. Therefore, when the sale was effected by the defendant, suit was pending and the defendant had knowledge about the pendency of the interim injunction application also. 10. The learned counsel had further contended that though a registered sale agreement was standing in the name of one Paulraj on 16.02.2010 it would not create any right in favour of a party or it can be treated as an encumbrance over the property. In fact, the said sale agreement has been cancelled on 18.05.2011. In such circumstances, the reflection of the registered sale agreement in the encumbrance certificate would not be a bar for entering into an unregistered sale agreement with the owner of the property. The learned counsel had further stated that the suit proceedings cannot be considered to be collusive in nature, in view of the fact that the defendant had filed I.A.No.611 of 2018 to condone the delay of 2454 days in filing an application to set aside the exparte decree. The said application was filed on 03.09.2018 and the same was dismissed on 31.08.2021. Therefore, it is clear that the defendant had contested the proceedings. 11. The learned counsel for the appellant had further contended that the suit for specific performance was filed on 03.12.2010 and the defendant had entered appearance in the suit on 24.01.2011 and sought time to file counter in the interim injunction application. Thereafter, he had chosen to alienate the property in favour of the claim petitioner on 18.05.2011. Therefore, it is clear that the claim petitioner is a pendente light purchaser and therefore, the sale in favour of the pendente lite purchaser is always subject to the result of the suit. He had further contended that in view of Order 21 Rule 102 of C.P.C, a pendente lite purchaser cannot file an application under Order 21 Rule 97 of C.P.C. He relied upon the judgment of the Hon'ble Supreme Court reported in (1998) 3 SCC 723 (Silverline Forum Pvt.Ltd., Vs. Rajiv Trust and another) and (2007) 7 SCC 144 (Usha Sinha Vs. Dina Ram and others) to impress upon the Court that the pendente lite purchaser is not entitled to file an application under Order 21 Rule 97 of C.P.C. Hence, he prayed for allowing the appeal. 12. Per contra, the learned counsel appearing for the first respondent had contended that the suit property belongs to the defendant namely Pitchaimuthu. Dina Ram and others) to impress upon the Court that the pendente lite purchaser is not entitled to file an application under Order 21 Rule 97 of C.P.C. Hence, he prayed for allowing the appeal. 12. Per contra, the learned counsel appearing for the first respondent had contended that the suit property belongs to the defendant namely Pitchaimuthu. He had mortgaged the property in favour of one Petha Naidu on 20.06.2005 and thereafter, it was redeemed on 14.02.2008. The defendant had entered into a registered sale agreement with one Jeyapal on 21.02.2008. However, the said agreement was cancelled on 16.02.2010. 13. The learned counsel for the first respondent had further that on 16.02.2010, the defendant had entered into a sale agreement with one Paulraj who is the husband of the claim petitioner and possession was also handed over to him. On 18.05.2011, the sale agreement in favour of Paulraj was cancelled and a sale deed was executed in favour of wife of the said Paulraj on the same day. He had further pointed out that when the plaintiff had entered into an unregistered sale agreement on 03.11.2009, the encumbrance certificate was reflecting a registered sale agreement in favour of the husband of the claim petitioner. Therefore, the unregistered sale agreement has been antedated in order to cheat the claim petitioner. The suit filed by the plaintiff is collusive in nature and any decree passed in the suit would not confer any title upon him. 14. The learned counsel for the respondent had relied upon the judgement of the Hon'ble Supreme Court reported in (1998) 4 SCC 543 (Shreenath & Another vs Rajesh & Others) to contend that an obstructor is also entitled to raise all the pleas including the maintainability of the decree. The learned counsel had further relied upon the judgment of the Sikkim High Court reported in AIR 2023 SIKKIM 55 (Kiran Devi Chouraria V.Jhumar Mal Singhi and others) to contend that when objector is not a party to the arbitral proceedings, he can seek and obtain relief, if the award has not been given fairly. Relying upon the above said judgments, the learned counsel for the respondent had contended that no summons were served to the defendant either in the suit or in the execution proceedings and a decree was obtained in a fraudulent manner. Relying upon the above said judgments, the learned counsel for the respondent had contended that no summons were served to the defendant either in the suit or in the execution proceedings and a decree was obtained in a fraudulent manner. Therefore, the claim petitioner is entitled to raise objection with regard to the validity of the decree also. 15. The learned counsel for the respondent had further contended that when a sale deed was executed by the defendant in his favour on 18.05.2011, she was not aware of the pendency of the suit and therefore, she is a bonafide purchaser for valuable consideration and therefore, she is entitled to the benefit under Section 19(b) of the Specific Relief Act. Hence, he prayed for sustaining the order passed by the First Appellate Court. 16. I have heard the submissions made on either side and perused the material records. (C) Discussion: 17. The suit for specific performance has been filed on 03.12.2010. The defendant in the suit has received summons and entered appearance through counsel on 20.12.2010 and had sought time to file counter in the interim injunction application in I.A.No.578 of 2010. The interlocutory application has been adjourned at the request of the defendant to 24.01.2011, 14.03.2011 and 15.04.2011 for filing counter. Therefore, it is clear that the defendant was aware of the pendency of the suit and the interim injunction application. However, the defendant had proceeded to alienate the property in favour of the claim petitioner on 18.05.2011. Hence, it is clear that the claim petitioner is a pendente lite purchaser. The trial Court had proceeded to dismiss the claim petition on the ground that a pendente lite purchaser would not be entitled to file an obstruction petition under Order 21 Rule 97 of C.P.C in view of the bar under Order 21 Rule 102 of C.P.C. However, the First Appellate Court has proceeded to allow the appeal filed by the claim petitioner mainly on the ground that mere pendency of litigation would not invalidate the sale deed and a bonafide purchaser for valuable consideration would be protected under Section 19(b) of the Specific Relief Act. 18. Order 21 Rule 102 of C.P.C is extracted as follows: Order 21 Rule 102. 18. Order 21 Rule 102 of C.P.C is extracted as follows: 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. Explanation- In this rule, “transfer” includes a transfer by operation of law. 19. The Hon'ble Supreme Court in a judgment reported in (2007) 7 SCC 144 (Usha Sinha Vs. Dina Ram and others) in paragraph No.26 has held as follows: 26. For invoking Rule 102, it is enough for the decree holder to show that the person resisting the possession or offering obstruction is claiming his title to the property after the institution of the suit in which decree was passed and sought to be executed against the judgment debtor. If the said condition is fulfilled, the case falls within the mischief of Rule 102 and such applicant cannot place reliance either on Rule 98 or Rule 100 of Order XXI. 20. In the present case, the claim petitioner is claiming title only under the judgment debtor and no independent title has been traced. That too, the right is traced through the defendant in the suit while the suit for specific performance was pending and after the defendant had entered appearance. It is clear that the present claim petition tracing title through the defendant pending suit is not maintainable. 21. The learned counsel for the claim petitioner/respondent had further contended that the decree has been obtained by the fraudulent means without issuance of summons to the defendant. When an obstruction petition is filed under Order 21 Rule 97 of C.P.C, the claimant is expected to prove his title. He cannot challenge the decree passed in the suit. 22. The learned Single Judge of this Court in a judgment reported in 2011-1-L.W.647 (Munusamy & 4 others Vs. Vengadachalam & 10 others) in paragraph No.17 has held as follows: 17. He cannot challenge the decree passed in the suit. 22. The learned Single Judge of this Court in a judgment reported in 2011-1-L.W.647 (Munusamy & 4 others Vs. Vengadachalam & 10 others) in paragraph No.17 has held as follows: 17. Therefore, it has been made clear by the Honourable Supreme Court that in an enquiry under Order XXI Rule 97, when an obstructor objects to the delivery of possession by the decree holder, claiming independent right, the court has to find out whether the obstructor has got any legal right to be in possession of the property and if the court comes to the conclusion that he has got every right to be in possession of the property, the court can pass orders to that effect and dismiss the application filed by the decree holder and in that proceedings, the court cannot go into the legality of the decree passed in favour of the decree holder at the instance of the obstructor. Therefore, the substantial question of law raised by the appellants that the decree obtained by the first respondent/decree holder is nullity and he has no right or title to A portion of the property and that question has to be gone into execution proceedings cannot be accepted. The substantial questions of law raised by the appellants are decided against them. 23. In view of the judgement referred supra, it is clear that the claim petitioner has to succeed on his title vis-a-vis the title of the defendant. He cannot challenge the validity of the decree in the said proceedings. Therefore, the contentions raised by the learned counsel for the respondent are not legally sustainable. 24. The First Appellate Court had allowed the appeal primarily on the ground that though the claim petitioner is a pendente lite purchaser, the specific performance of a contract cannot be enforced as against the claim petitioner, in view of the fact that he is a bonafide purchaser for valuable consideration and without notice of the original contract, in view of Section 19(b) of the Specific Relief Act, 1963. The First Appellate Court had further arrived at a finding that when a suit for specific performance was filed already there was a registered sale agreement in favour of the husband of the claim petitioner. Therefore, the plaintiff ought to have impleaded the said agreement holder in a suit for specific performance. 25. The First Appellate Court had further arrived at a finding that when a suit for specific performance was filed already there was a registered sale agreement in favour of the husband of the claim petitioner. Therefore, the plaintiff ought to have impleaded the said agreement holder in a suit for specific performance. 25. From the records, it could be seen that the sale agreement in favour of the claim petitioner's husband was cancelled on 18.05.2011. The claim petitioner's husband namely Paulraj has not approached the Court seeking the benefits of the sale agreement. That apart, the claim petitioner is not tracing her right through a registered sale agreement in favour of her husband dated 16.02.2010, but under an independent sale deed in her favour on 18.05.2011. 26. The First Appellate Court had further found that the possession of the property has been handed over in favour of the claim petitioner under the sale deed dated 18.05.2011 and therefore, it is prior to the filing of the suit for specific performance. In fact, the suit for specific performance has been filed on 03.12.2010. The registered sale agreement in favour of the claim petitioner's husband on 16.02.2010 clearly reveal that the possession was not handed over to the claim petitioner's husband. Even assuming that the possession was handed over in favour of the claim petitioner on 18.05.2011, it is only pending suit and not prior to the date of filing of the suit. Therefore, such a finding of the trial Court is factually incorrect. 27. The sale has been effected by the defendant in the suit after receiving summon and after entering appearance through counsel and after seeking time to file a counter in the interim injunction application. Therefore, it is clear that the claim petitioner who had purchased the property pending litigation is not a bonafide purchaser for valuable consideration without notice of the existence of prior contract. In fact, the sale agreement in favour of the plaintiff is dated 03.11.2009 and the sale deed in favour of the claim petitioner is dated 18.05.2011. There is no sale agreement in favour of the claim petitioner prior to the date of filing of the suit for specific performance. In such circumstances, the claim petitioner can never be considered to be a bonafide purchaser for valuable consideration. 28. There is no sale agreement in favour of the claim petitioner prior to the date of filing of the suit for specific performance. In such circumstances, the claim petitioner can never be considered to be a bonafide purchaser for valuable consideration. 28. The Hon'ble Supreme Court while considering the scope and effect of Section 52 of the Transfer of Property Act in a judgment reported in (2004) 2 SCC 601 (Raj Kumar Vs. Sardari Lal and others) in paragraph No.5 has held as follows: “5. The doctrine of lis pendens expressed in the maxim 'ut lite Pendente nihil innovetur' (during a litigation nothing new should be introduced) has been statutorily incorporated in Section 52 of the Transfer of Property Act 1882. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successful plaintiff of the fruits of the decree. The transferee pendente lite is treated in the eye of law as a representative-in-interest of the judgment-debtor and held bound by the decree passed against the judgment-debtor though neither the defendant has chosen to bring the transferee on record by apprising his opponent and the Court of the transfer made by him nor the transferee has chosen to come on record by taking recourse to Order 22 Rule 10 of the CPC. In case of an assignment creation or devolution of any interest during the pendency of any suit. Order 22 Rule 10 of the CPC confers a discretion on the Court hearing the suit to grant leave for the person in our upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the Court. Though not brought on record the lis pendens transferee remains bound by the decree.” 29. The Hon'ble Supreme Court while considering the issue whether the defence of bonfafide or good faith can be raised by a lis pendens purchaser in a judgment reported in (2006) 13 SCC 608 (Sanjay Verma Vs. Manik Roy and others) in paragraph No.12 has held as follows: “12. The Hon'ble Supreme Court while considering the issue whether the defence of bonfafide or good faith can be raised by a lis pendens purchaser in a judgment reported in (2006) 13 SCC 608 (Sanjay Verma Vs. Manik Roy and others) in paragraph No.12 has held as follows: “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 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........” 30.The Hon'ble Supreme Court while considering the effect of Section 19(b) of Specific Relief Act with regard to a bonafide purchaser in a suit for specific performance in a judgment reported in (2008) 5 SCC 796 (Guruswamy Nadar Vs.P.Lakshmi Ammal (dead) through LRs. and others) in paragraph Nos.8 & 9 has held as follows: 8. 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. 9. 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 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.” 31. 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.” 31. A combined reading of the judgments of the Hon'ble Supreme Court cited supra will make it clear that a plea of bonafide purchaser or good faith cannot be taken as a defence by a pendente lite purchaser. The object of Section 52 of Transfer of Property Act is to subordinate all the derivative interests, derived by the pendente lite transferee, to the rights declared by the decree in the suit. It is a principle of public policy and no question of good faith or bonafide arises. It is further clear that the transferee from one of the parties to the suit cannot assert any title or interest, adverse to any of the rights acquired by another party under the decree in the suit. When there is an conflict between Section 52 of the Transfer of Property Act and Section 19(b) of Specific Relief Act, the doctrine of lis pendens prevails over the defence of bonafide purchaser for valuable consideration. 32. The defence under Section 19(b) of the Specific Relief Act can be invoked by a purchaser only if the purchase is subsequent to the first contract, but prior to the filing of the suit for specific performance. Section 52 of the Transfer of Property Act operates against the transfer subsequent to the institution of the suit. Unless the subsequent transferee makes a claim based upon a transfer made prior to the suit, he cannot claim himself to be a transferee for value in good faith as provided under Section 19(b) of the Specific Relief Act. Otherwise, the right of a pendente lite transferee will not remain subservient to the decree which would be clearly against the scope of Section 52 of Transfer of Property Act. 33. In the present case, admittedly the suit has been filed on 03.12.2010 and the defendant had entered appearance in the suit and sought time to file counter in the interim injunction application in January 2011. However, the defendant has proceeded to alienate the property on 18.05.2011. Therefore, the alienation is a lis pendens alienation and hence, covered under Section 52 of Transfer of Property Act. However, the defendant has proceeded to alienate the property on 18.05.2011. Therefore, the alienation is a lis pendens alienation and hence, covered under Section 52 of Transfer of Property Act. Since the claim petitioner has purchased the property five months after filing of the suit, he cannot take the defence under Section 19(b) of the Specific Relief Act. 34. In view of the above said deliberations, the application filed by the claim petitioner under Order 21 Rule 97 of C.P.C cannot be entertained in view of the prohibition contained in Order 21 Rule 102 of C.P.C. The substantial question of the law is answered in favour of the appellant. The judgment and decree of the First Appellate Court are hereby set aside and the judgment and decree of the trial Court is restored. Accordingly, this Civil Miscellaneous Second Appeal stands allowed. No costs.