Judgment on S 52 of Transfer of property Act-Lis pendens

Property - Refusal to grant injunction - Challenge against thereto - Section 52 of Transfer of Property Act, 1882 (TP Act); Order XXI Rule 100 and Order 39 Rule 1 of Code of Civil Procedure, 1908 (CPC) - Appeal was filed by Appellant Plaintiff against order of Civil Judge, rejecting his Application to restrain Respondent Defendant No. 7 from creating third party interests in suit property pending hearing of suit - Held, there could be cases where protection of Section 52 of TP Act, might be found inadequate and on such a case being made out recourse to powers under Order 39, Rule 1 of CPC, could be had - Three Judges accepted that Section 52 of TP Act, afforded adequate protection - Said view had not found favour with Judge deciding Pralhad Jaganath Jawale & other v. Sitabai Chander Nikam & others - Hence, there were conflicting judgments of Courts of record tend to create confusion in trial Courts - It was appropriate to refer matter to a larger Bench rather than committing judicial indiscipline of taking a different view - Therefore, following questions were referred for decision to a Division Bench: (I) Does Section 52 of TP Act, provided adequate protection to parties from transfers pendente lite since such transferees were not required to be, or entitled as of right to be, impleaded as parties to suit and could not resist execution proceedings in view of provisions of Order XXI Rule 100 of CPC, as amended by present Court ?; (II) Would Plaintiffs' registering notices of their suits under Section 18 of Indian Registration Act (though such registration might not be compulsory) not secure for Plaintiffs more than what an injunction could secure since transferees, who purchased property, pendente lite in spite of such registration would be deemed to have notice of pendency of lis and could not claim to be transferees without notice ? And, would such registration not be preferable to clamping an injunction on adversary ?; (III) Since a Plaintiff seeking a temporary injunction was required to show that he would suffer irreparably if temporary injunction was not issued, would it be inappropriate to expect such Plaintiff to show that provisions of Section 52 of TP Act, did not afford adequate protection before an injunction to restrain transfer pendente lite was issued ?; (IV) Would it be appropriate, in cases of claims for temporary injunction to restrain transfers pendente lite, to consider imposition of conditions short of granting injunction, which should protect Plaintiff's interest, like, seeking an undertaking that no equities would be claimed on account of sale or development of properties; effecting sales only after putting transferees to notice that their rights would be subject to pending suit, or requiring party to inform Court promptly of creation of every such interest ?; (V) Whether observation in para (13) of judgment in Vasant Tatoba Hargude and others v. Dikkaya Muttaya Pujari that in event of there being conflict, decision of later Bench would bind only lays down that judgment later in point of time as explaining earlier judgment would bind ?
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE – CIVIL
APPEAL FROM ORDER NO.256 OF 2013
WITH
CIVIL APPLICATION NO.302 OF 2013

Prakash Gobindram Ahuja, v Ganesh Pandharinath Dhonde


CORAM: R.C. CHAVAN, J.

PRONOUNCED ON: APRIL 08,2013
Read full judgment here: click here

Print Page