Execution of decree and obstruction to its execution

 Execution is the process by which a decree-holder enforces a decree through the civil court. The law on execution is contained mainly in Sections 36 to 74 of the Code of Civil Procedure, 1908, and the detailed procedure is laid down in Order 21of  CPC.

A decree may be executed by the court which passed it, or by the court to which it is transferred for execution under Section 38 CPC. The decree-holder initiates the process by filing an execution application under Order 21 Rules 10 and 11 CPC, after which the court adopts the mode of execution permitted by law.

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Supreme Court: Though S.52 TP Act Doesn't Make Pendente Lite Transfer Void, Court Can Invalidate Such Sale Exercising Contempt Power

 Thus, although Section 52 of the Act 1882 does not render a transfer pendente lite void yet the court while exercising contempt jurisdiction may be justified to pass directions either for reversal of the transactions in question by declaring the said transactions to be void or proceed to pass appropriate directions to the concerned authorities to ensure that the contumacious conduct on the part of the contemnor does not continue to enure to the advantage of the contemnor or anyone claiming under him. {Para 180}

IN THE SUPREME COURT OF INDIA

Contempt Petition (C) Nos. 158-159 of 2024.

Decided On: 13.12.2024

Celir LLP Vs. Sumati Prasad Bafna and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and Manoj Misra, JJ.

Author: J.B. Pardiwala, J.

Citation: 2024 INSC 978,MANU/SC/1343/2024.

Read full Judgment here: Click here.

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Whether Section 52 of Transfer of Property Act operates as bar to grant of temporary injunction under Order 39 Rules 1 and 2 of CPC?

In view of the submissions advanced, the following points arise for consideration and determination;

i) Whether Section 52 of the Transfer of Property Act operates as a bar to the grant of temporary injunction under Order 39 Rules 1 and 2 CPC? {Para 14}

24. From the aforesaid, we are of the considered view that Section 52 of T.P. Act although provides protection to the parties from transfers pendent lite, in as much as it makes such transfers subservient to the decree that may be passed in the suit, but it does not come in the way of passing an order of temporary injunction restraining alienation of the suit property during the pendency of the suit on the applicant satisfying all the three ingredients of prima facie, balance of convenience and causing irreparable loss or injury in his favour.

25. The distinction between Section 52 of T.P. Act and Order 39 Rules 1 and 2 CPC, is that an order of temporary injunction is of preemptive nature restraining the act of alienation by party to the suit where there is such a danger, whereas Section 52 of T.P. Act comes into play after the alienation takes place during pendency of the suit. Section 52 of T.P. Act provides for the consequences of a transfer taking place pending litigation, i.e., that the pendent lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor(s) that may be finally determined by the court. Section 52 of T.P. Act does not come in the way of applicability of Order 39 Rules 1 and 2 CPC. In other words, notwithstanding Section 52 of T.P. Act making the transfers during pendency of the suit subject to the ultimate decree that may be passed in the suit, the court may, pass an order of temporary injunction, if all the requisite pre-conditions for such grant are satisfied. If an order is passed and transfer is restrained, the question of applicability of Section 52 of T.P. Act will not arise as then there will be no transfer pending litigation. On the other hand, if the party does not apply for temporary injunction or if the application is rejected and the suit property is transferred pending litigation, Section 52 of T.P. Act shall come into play and those transfers would abide by the ultimate result of the suit.

28. For the aforesaid reasons, we are not inclined to accept the contention of the learned counsel for the appellant that in view of Section 52 of T.P. Act providing for the effect of transfers during pendency of the suit, the order of temporary injunction under Order 39 Rules 1 and 2 could not be passed. If such an argument is accepted, then the court cannot pass an order of temporary injunction to restrain alienation in spite of specific provision under Order 39 Rule 1(a) CPC, in any case, as in every case any alienation made pending litigation would abide by the doctrine of lis pendens embodied under Section 52 of T.P. Act. This will render the provisions of Order 39 Rules 1 and 2 CPC ineffective.

 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

Civil Miscellaneous Appeal Nos. 43 and 45 of 2021

Decided On: 25.01.2022

K. Ravi Prasad Reddy and Ors.  Vs.  G. Giridhar and Ors.

Hon'ble Judges/Coram:

C. Praveen Kumar and Ravi Nath Tilhari, JJ.

Author: Ravi Nath Tilhari, J.

Citation: MANU/AP/0075/2022,

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Is the sale deed executed by the deceased defendant's son invalid by the doctrine of lis pendens even if he was not added as a party to suit within limitation?

LIS PENDENS

92. The Doctrine of Lis Pendens is based on the maxim “pendente lite nihil innovetur”. This means that pending litigation, nothing new should be introduced. Section 52 of the Transfer of Property Act, 1882 (for short, ‘the TP Act’), which incorporates the Doctrine of Lis Pendens, is based on equity and public policy. It pours complete efficacy to the adjudicatory mechanism. This is done by finding that any disposition of property, as described in the Section by a party to the litigation will, in not any way, detract from the finality of the decision rendered by the court. It is clear that it is not based on the ground of Notice as laid down by Lord Craanworth in Bennamy v. Sabine, which has been followed by the Privy Council in the decision in 34 Indian Appeals 102. We may notice the following discussion in this regard in “The Transfer of Property, by Mulla, 12th Edition:
“The rule is, therefore, based not on the doctrine of notice, but on expediency, ie, the necessity for fine adjudication. It is immaterial whether the alienee pendente lite had, or had not, notice of the pending proceeding. This is, of course, no longer the case in England, or in Gujarat and Maharashtra, where the doctrine only affects transactions pendente lite if the lis has been duly registered.”

93. It is further important to notice that when a transaction is done, lis pendens or pending a case, the transaction is, as such, not annulled. The transaction is, in other words, not invalidated. In fact, as between the transferor and the transferee, it does not lie in the mouth of the transferor to set up the plea of lis pendens to defeat the disposition of property. Equally, the Principle of Lis Pendens is, not to be confounded with the aspect of good faith or bonafides. In other words, the transferee or the beneficiary of the property, which is disposed of by a party, cannot set up the case that he acted bonafide or in good faith. This enables the court and the parties in a Suit or a proceeding, which otherwise is in conformity with requirements of Section 52, to proceed in the matter on the basis that the adjudication by the court, will not, in any way, be subverted or delayed, when the day of final reckoning arrives.

94. In fact, the Special Bench of the Madras High Court in Manjeshwara Krishnaya v. Vasudeva Mallya and Four Others, AIR 1918 Madras 578, puts the Doctrine of Lis Pendens as an extension of the Doctrine of Res Judicata. Thus, the sine qua non for the Doctrine of Lis Pendens to apply is that the transfer is made or the property is otherwise disposed of by a person, who is a party to the litigation. The Doctrine of Lis Pendens, only subject, however, the transfer or other disposition of property to the final decision that is rendered. The person/party, who finally succeeds in the litigation, can ask the court to ignore any transfer or other disposition of property by any party to the proceeding. This is subject to the condition that transfer or other disposition is made during the pendency of the lis. 95. The first defendant died pending the Suit on 06.08.1994. Her death was reported before the Court on 16.01.1995. The plaintiff brought on record, the husband of the first defendant by Order dated 25.08.1995, as defendant No. 1(a). Defendant No. 1(b), who is the son of the second defendant, sold the property on 19.09.1996, in favour of the appellant. It is thereafter that on 09.04.1997, the predecessor in interest of the appellant, viz., the son of the first defendant, and the second defendant were impleaded on 09.04.1997. The transfer made in favour of the second defendant was, therefore, made at a time, when the son of the first defendant was not a party to the Suit. Therefore, it is that the contention was taken before the Trial Court successfully by appellants that the transfer in favour of the appellant was not hit by Doctrine of Lis Pendens.

96. The High Court in the impugned Judgment reversed this finding. The High Court, in doing so, employs, inter alia, the following reasoning:
“78. The position of law with regard to the rights and obligation of a dead person can be succinctly stated thus: The rights which a dead man thus leaves behind him vests in his representative. They pass to some person whom the dead man, or the law on his behalf, has appointed to represent him in the world of the living. This representative bears the person of the deceased, and therefore, has vested in him all the inheritable rights, and has imposed upon him all the inheritable liabilities of the deceased. Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representative is in some sort identified by the law with him whom he represents. The rights which the dead man can no longer own or exercise in propria persona, and the obligations which he can no longer in propria persona fulfil, he owns, exercises, and fulfils in the person of a living substitute. To this extent, and in this fashion, it may be said that the legal personality of a man survives his natural personality, until, his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for. Just as many of a man's rights survive him, so also do many of his liabilities; and these inheritable obligations pass to his representative, and must be satisfied by him. As far as the estate of a dead man is concerned, there are two class of persons who are entitled to it, namely, creditors and beneficiaries. A beneficiary possesses a dual capacity, while he may benefit by inheriting the dead man's estate is also liable to the dead man's obligations. He survives even after his death, especially the obligations concerning immovable property. The beneficiaries who are entitled to the residue after satisfaction of the creditors, are of two classes: (1) those nominated by the last will of the deceased and (2) those appointed by the law in default of any such nomination. They succeed respectively by testamentary succession (ex testamento) or intestate succession (ab intestate) (source: Salmond on Jurisprudence Twelfth Edition, P.J. Fitzgerald). Section 2(11) of the Code of Civil Procedure, 1908 (CPC) defines legal representative to mean a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of • the party so suing or sued. The aforesaid definition is both exhaustive as well as an inclusive definition. It is exhaustive in the sense that a legal representative means a person who in law represents the estate of immovable property. The beneficiaries who are entitled to the residue after satisfaction of the creditors, are of two classes: (1) those nominated by the last will of the deceased and (2) those appointed by the law in default of any such nomination. They succeed respectively by testamentary succession (ex testamento) or intestate succession (ab intestate) (source: Salmond on Jurisprudence Twelfth Edition, P.J. Fitzgerald).”

97. Thereafter, the High Court proceeded to consider the distinction between a legal representative as defined in Section 2(11) of the Code of Civil Procedure, 1908 and legal heirs. Still further, the Court also considered the scheme of Order XXII of the CPC and finally proceeds to find as follows:
“79. … Even though defendant No. 1(b) was not arrayed along with his father as a legal heir of the deceased defendant No.1, the fact remains that the estate of defendant No.1, which also includes the suit schedule property was represented through defendant No. 1(a), the husband of defendant No.1. Therefore, the contention that the sale that was made by defendant No. 1(b) in favour of defendant No.2 when defendant No. 1(b) was not a party to the suit is not subject to any direction that may be issued in the suit, and that Sec. 52 of the Act would not apply in the instant case is not a correct understanding of the position of law. Further, in the instant case, defendant No.1(a) also did not inform the trial court that his son was also a legal representative of deceased defendant No.1 and therefore, he also ought to be brought on record as the heir of the deceased defendant No.1 when the application was filed by the plaintiff to bring only him on record as legal heir of deceased defendant No.1. Therefore, it is held that in ' the instant case, the estate of the defendant No.1 was represented through defendant No.1(a) in the suit and that the alienation made by defendant No.1(b) to defendant No.2, even in the absence of defendant No.1(b) being made a party to the suit has no significance.

The High Court has relied on the decision of the Madras High Court in Nallakumara Goundan v. Pappayi Ammal and Another, AIR 1945 Mad 219. In the said case, after the death of the party, a legal representative disposed of the plaint schedule property within the period provided for substituting the dead person with the legal representative. It was in the said context held by the Madras High Court as under:
“…The same principle should, I think, apply to a case where as here the original defendant died and the alienation was made after his death and before the filing of the application to bring his legal representative on record. The suit must be deemed to be pending against the legal persona of the deceased i.e., against his legal representative and must be deemed to continue until at least the expiration of the time limited by any law of limitation to bring him on record. Whether if an application is made long after the expiration of the time fixed for bringing the legal representative on record and an alienation is made by the legal representative and later on the plaintiff in the action seeks to set aside the abatement and to bring the legal representative on record, and that is ordered, the doctrine of lis pendens applies or not does not arise and need not be considered. There may be difficulties in such a case, but where the alienation is made within the time prescribed for bringing the legal representative on record, it is a clear case and there can be no doubt whatever that the rule does apply…”

98. Thereafter, the Court concluded that in the circumstances, Section 52 of the TP Act squarely applied.

99. It would appear that the High Court has, in arriving at the finding that the transfer in favour of the appellant is hit by lis pendens, taken into consideration the Doctrine of Notice/Constructive Notice. We have already observed that the Doctrine of Notice and Constructive Notice would be inapposite and inapplicable. Neither the fact that the transferee had no notice nor the fact that the transferee acted bonafide, in entering into the transaction, are relevant for applying Section 52 to a transaction. This is unlike the requirement of Section 19(1)(b) of the Specific Relief Act whereunder these requirements are relevant.

100. The decision of the Madras High Court in Nallakumara Goundan (supra) turned on in its own facts as indicated by the said court itself. In other words, that was a case where even within the period of limitation for substitution of the legal representative of a deceased party in a suit, the legal representative purported to deal with the property. It was in the said context that the court proceeded to hold that lis pendens would apply. In this case the transfer in favour of the second defendant took place on 16.09.1996. The vendor and the vendee namely defendant 1(b) and the second defendant were not parties on the date of the transaction. They were impleaded only almost one year thereafter. No doubt we are not oblivious to the role played by defendant 1(a) namely the husband of the first defendant who gave his ‘no objection’ to the assignment of the entire rights in favour of his son namely defendant 1(b) without which BDA could not have assigned the right in favour of defendant 1(b). Though not urged by the plaintiff, could it be said that as defendant 1(a) was already a party and this must be treated as a case were defendant 1(a) as ‘otherwise dealt’ with the property within the meaning of Section 52 without which the title would not vest in defendant 1(b). A transfer which is made lis pendens it is settled law, is not a void document. It does create rights as between the parties to the sale. The right of the party to the suit who conveys his right by a sale is extinguished. All that Section 52 of the Transfer Property Act provides is that the transfer which is made during the pendency of the proceeding is subjected to the final result of the litigation. Even assuming for a moment that the conduct of defendant 1(a) the father of defendant 1(b), in giving a no objection and thereby enabling defendant 1(b) to derive the title exclusively to the property and which title stood conveyed to the second defendant attracted, the principle of lis pendens, it would still not invalidate the sale. At best, the plaintiff can contend that, should he be entitled for a decree of performance the sale in favour of the second defendant should be subjected to such decree. As far as the transfer is made by defendant 1(b) to the second defendant in his own right and in so far as defendant 1(b) was not a party and by the time the sale was effected the period of limitation for impleading defendant 1(b) had already clearly expired even the principle laid down in the decision of the Madras High Court would not apply and the High Court was not correct in finding that the sale by defendant 1(b) in favour of second defendant was hit by lis pendens. 

Supreme Court

JUSTICE K. M. JOSEPH JUSTICE PAMIDIGHANTAM SRI NARASIMHA

G. T. GIRISH Vs. Y. SUBBA RAJU (D) BY LRs. & ANR.

CIVIL APPEAL NO. 380 OF 2022

18th January 2022

Author: K. M. JOSEPH, J.

Citation: 2022 ALL SCR (ONLINE) 53

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Whether it is necessary to seek cancellation of sale deed if it was executed during pendency of suit?

 In our opinion, when the sale deed had been executed during the pendency of suit the purchaser pendente lite is bound by the outcome of the suit. The provisions of Section 52 prevent multiplicity of the proceedings. It was not at all necessary to file a suit for cancellation of the sale deed as the vendor had no authority to sell land of other co-sharers. He had right to alienate his own share only which he had in the property to the extent of 14/104th. As such the right, title and interest of Bala Mallaiah were subject to the pending suit for partition in which a preliminary decree was passed in the year 1970 which had attained finality in which the vendor of Bala Mallaiah, Defendant 1 was found to be having share only to the extent of 14/104th.  { Para 48}

 Therefore, it is settled legal position that the effect of Section 52 is not to render transfer effect during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit and the pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the Court. Therefore, in the present suit defendant No. 2 is bound by the decree which may be passed against defendant No. 1. Admittedly, by virtue of compromise decree in R.A. No. 272/2004 defendant No. 1 is aware that the suit property was allotted to the share of plaintiffs and he had no right title and interest so as to transfer the same in favour of defendant No. 2 by executing registered sale deed dated 02.05.1997 as per Ex. D1. In spite of knowing consequences of the same, defendant No. 1 executed the sale deed during the pendency of suit bearing O.S. No. 45/1994. Therefore, the said sale deed is hit by Section 52 of Transfer Property Act. Though, it cannot be held as void ab initio, as held by the Hon'ble Supreme Court in the judgment referred supra, Pendente lite purchaser defendant No. 2 herein is bound by the decree passed in the suit against his vendor.

IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)

RSA No. 1346/2007

Decided On: 24.04.2019

 Gurushantappa  Vs. Shankar and Ors.

Hon'ble Judges/Coram:

P.G.M. Patil, J.

Citation: AIR 2019 Karnat 113

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Collection of Legal maxims

1)Actus Reus Non Facit Reum Nisi Mens Sit ReaDefinition: Latin: conviction of a crime requires proof of a criminal act and intent. Actus reus non facit reum nisi mens sit rea: (Latin) an act does not make a defendant guilty without a guilty mind.

2) Dormiunt Aliquando Leges Nunquam Moriuntur. Although the laws sometimes sleep, they never die.

3) DOTI LEX FAVET; PRAEMIUM PUDORIS EST; IDEO PARCATUR Meaning 

Latin, meaning The law favors dower; it is the reward of chastity therefore let it be preserved.

4) “Quando aliquid prohibetur ex directo, prohibetur et per obliquum”

This maxim implies that “when anything is prohibited directly, it is also prohibited indirectly”. In common parlance, it is meant to be understood as “Whatever legislature can’t do directly, it can’t do indirectly”.

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Whether it is mandatory to record lis pendens in revenue record?

We do not find that there is any error in the said decision and rather the said decision taken by the State Government, as contained in the impugned circular, is in conformity with the provision of the Maharashtra Land Revenue Code, since section 148 of the Code sets out the particulars which should be included in the record of rights and it do not stipulate any other particulars to be included, except in accordance with the decision by the State Government, which it can prescribe by the rules. It is the State Government which has made it clear that the pendency of any proceedings or suit before any court or any other quasi judicial authority, does not amount to any kind of right in praesenti and a right of litigant comes into existence only on final adjudication by the concerned Court where the lis is pending. Since the Maharashtra Land Revenue Code itself do not provide for inclusion of a lis pendens in the record of right and the State Government had rather reflected its decision not to include the same in the record of right in the backdrop of the fact that the revenue records are mere reflections of the rights claimed by a person in respect of any immovable property and being reported to the revenue authority and such entries are subject to adjudication of title rights by Court of competent jurisdiction, the said decision of the State Government cannot be said to be arbitrary or capricious specifically when section 52 of the Transfer of Property Act protects the properties which are involved in any lis and the principle recognized in the said section put restrictions on the rights of the parties to a suit or proceeding to transfer the property, which is the subject matter of the said litigation. In any case, the object of Section 52 is not to make such transfers made in violation of the said provision to be void ab initio, but are only voidable at the instance of the party who has been prejudiced. The State amendment to section 52 further protects the interest of the land holders in the State and whenever the notices of pending suits or proceedings referred to in section 52 of the Transfer of Property Act, 1882 is given under section 18 of the Registration Act, the Land Revenue Code makes it imperative for the Officer recording such a registration to forward an intimation to the talathi of the village. The avowed purpose of such an intimation is to keep the Talathi of a village or tahsildar of a taluka updated about the dealings in respect of a piece of land, in respect of which he is duty bound to maintain the revenue record. In such circumstances, the decision of the State Government not to effect entries of lis pendens in the record of rights is perfectly in tune and spirit with the Maharashtra Land Revenue Code and we do not find that the said decision calls for an interference by exercising our writ jurisdiction. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7040 of 2013 and Writ Petition No. 8042 of 2014

Decided On: 17.07.2018

Pramod Moreshwar Tattu Vs. Sub-Divisional Officer, Baramati and Ors.

Hon'ble Judges/Coram:

S.C. Dharmadhikari and Bharati H. Dangre, JJ.

Citation: 2018(6) MHLJ 785

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Whether admission with respect to the interest which has been parted away is admissible in evidence?

 Reliance has also been placed on Section 18 of the Evidence Act. In the instant case, there is no admission after parting with the interest made in the execution proceedings inter se husband and wife. The auction was held by the court in accordance with law. It was not the case set up that the decree passed in the maintenance suit was based upon fraud or a collusive one. Nor was such a case so set up with respect to the auction of the properties in the execution of the decree. On the contrary, the husband had preferred an appeal against the judgment and decree passed in the maintenance case, which was dismissed on merits. Section 18 of the Evidence Act states:

18. Admission by party to proceeding or his agent.-Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions. by suitor in representative character.-Statements made by parties to suits, suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.

Statements made by-

(1) party interested in subject-matter..-persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, or

(2) person from whom interest derived..-persons from whom the parties to the suit have derived their interest in the subject-matter of the suit,

are admissions, if they are made during the continuance of the interest of the persons making the statements.

Thus, after parting with the interest, no admission with respect to the interest which has been parted away is admissible

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5007 of 2018 (Arising out of S.L.P. (C) No. 7468 of 2015)

Decided On: 11.05.2018

 Siddagangaiah  Vs. N.K. Giriraja Shetty (D) thr. L.Rs.

Hon'ble Judges/Coram:

Arun Mishra and U.U. Lalit, JJ.

Citation:(2018) 7 SCC 278,2019(2) MHLJ 577

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Good legal article on Lis pendens( S 52 of Transfer of Property Act)

Lis pendens means that nothing new should be introduced in pending litigation.

      Where a suit or proceeding is pending between two persons with respect to immovable property and one of the parties thereto sells,or otherwise transfers subject matter of litigation, then transferee will be bound by result of suit or proceeding,whether or not, he had notice of suit or proceeding .This rule is known as the rule of lis pendens. This rule affects the purchaser not because the pending suit or proceeding amounts to notice but because the law does not allow litigants to give to others pending the litigation any right to property in dispute so as to prejudice the other party.

Thus the rule of lis pendens is based on the necessity for final adjudication: It aims at prevention of multiplicity of suits or proceedings. A transaction entered in to during pendency of a suit can not prejudice the interests of a party to suit who is not party to transaction. The object of the rule is to protect one of the parties to a litigation against act of the other.

     The doctrine of lis pendens can not be availed of by the transferor and it is really intended for the protection of the other party, that is the party in the suit other than the transferor.

Suits decreed exparte also falls within the scope of doctrine of lis pendens ,provided they are not collusive.

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Whether purchaser pendente lite can be added as party in suit?

The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, whether/the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party; under Order XXII Rule 10 an alienee pendente lite may be joined as party. As already noticed, the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.

11. The law is thus settled that an alienee pendente lite would always be bound by the verdict of the Court in the suit and would always be subject to the final decree that would be passed. Such an alienee could be brought on record as a defendant under Order 1 Rule 10 of the CPC if it appears that his substantial interest in the suit property would depend upon the verdict in the said suit.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 11925 of 2016

Decided On: 09.06.2017

Rama and Ors. Vs. Narayan Govinda Khakal and Ors.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2017(5) BOM CR 272

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Whether transfer of property by trust deed will be invalid if it was effected during pendency of suit?

Section 52 of the Transfer of Property Act:-

29. The impact of the doctrine of lis pendens as enunciated under Section 52 of the Transfer of Property Act was considered by the Hon'ble Supreme Court in several decisions. Some of which may be referred to herein.

"1. In the case of Thomson Press (India) Ltd. v. Nanak Builders and Investors Pvt. Ltd. reported in MANU/SC/0192/2013 : AIR 2013 SC 2389,

2. In the case of A. Nawab John v. V.N. Subramaniyam MANU/SC/0516/2012 : (2012) 7 SCC 738,

3. In the case of T.G. Ashok Kumar v. Govindammal, MANU/SC/1044/2010 : JT 2010(13) SC 390."

30. It was uniformly held by the Hon'ble Supreme Court in all those decisions that Section 52 of the Transfer of Property Act does not declare a pendente lite transfer by a party to the suit as void or illegal but only makes the pendente lite purchaser bound by the decision in the pending litigation. It was also held that if ultimately title of the pendente lite transfer is upheld in regard to the transferred property, the transferee's title will not be affected. Thus, if title of the pendente lite transferor is recognised or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only in regard to that extent.

31. Thus, it was held by the Hon'ble Supreme Court in those decisions that transfer during the pendency of the suit itself does not invalidate the transfer.

32. Thus, we hold that the deed of trust executed by the settlors cannot be held to be illegal and/or invalid as such deed was executed by the settlors during the pendency of the suit without taking leave of the Court, as contended by Mr. Das.

IN THE HIGH COURT OF CALCUTTA

S.A. 442 of 2016 and CAN 9187 of 2016

Decided On: 03.04.2017

 Nirmal Kumar Neogi Vs. Samar Ghosh and Ors.

Hon'ble Judges/Coram:

Jyotirmay Bhattacharya and Asha Arora, JJ.

Citation: AIR 2017(NOC) 907 Cal

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Whether purchaser is subject to lis pendens even after dismissal of suit?

It was also submitted on behalf of the appellants that the expression in
section 52 of the T.P. Act “suit or proceedings” is also applicable to the
applications. An application seeking extension of time is also a proceeding within
the meaning of the said provision and appeal filed is also continuation of the suit or
proceedings but comes within the meaning of the proceedings. The legislative
intent behind the amendment of section 52 was not only to cover the suit but also
to cover appeals and proceedings and same would include all applications/appeals
under the CPC. An application under Order 9 Rule 9 would also be covered within
the meaning of the expression suit or other proceedings to which the doctrine of lis
pendens would apply. It was also submitted that section 52 prior to amendment
prohibited transfer made during the “active prosecution” of a suit. Section 52 of the
Transfer of Property Act, embodies the rule of lis pendens, which prior to its
amendment only prohibited a transfer made during the “active prosecution” of a
suit or a proceeding in which any right to immoveable property was directly and
specifically in question. The expression “active prosecution”, which existed in the
section before its amendment in 1929, led to much uncertainty in the application of
the rule, and caused a divergence of judicial opinion. It was felt that the standard
of diligence, which would constitute “active prosecution”, could not be defined
with precision. To remove this uncertainty, the law was amended in 1929, and the
Amending Act XX of 1929 substituted the word “pendency” for the phrase “active
prosecution”; and there can now be no difficulty in deciding whether the transfer
was made during the pendency of a suit or proceeding. In Parmeshari Din v. Ram
Charan & Ors. AIR 1937 PC 260, it was held :
“2. It is clear that the question of the active prosecution of a suit is
one of fact, but it was not suggested in either of the Courts in India
that the plaintiffs had not actively prosecuted the suit, and were
consequently debarred from availing themselves of the rule of lis
pendens. The learned Judges of the Court of Appeal had, therefore, no
opportunity to express their opinion on this point; and their Lordships
cannot entertain an objection, which depends upon a question of fact
not dealt with below. Upon the record before them, there is no
indication of any delay or remissness in the prosecution of the suit, for
which the plaintiffs can be held responsible. Their Lordships,
therefore, agree with the High Court that the transfer relied upon by
the appellant cannot prejudice the rights of the decree-holders, and
that he cannot resist the decree obtained by them.”
The abovesaid principle of law settled in the year 1937 by the Privy Council
is still valid as discerned from the latest judgment of this Court rendered in the
case of Kirpal Kaur v. Jitender Pal Singh & Ors. (2015) 9 SCC 356 :
 “21. The execution of the alleged gift deed by the deceased first
defendant in favour of the second defendant is also hit by
Section 52 of the Transfer of Property Act, 1882, as the said deed was
executed during the pendency of the proceedings and before the
expiry of the period of limitation for filing SLP. Further, during the
pendency of these proceedings, the second defendant, who has
claimed to be the alleged beneficiary of the suit Schedule “B”
property on the basis of alleged gift deed should have sought leave of
this Court as the donee and brought the aforesaid fact of execution of
the alleged gift deed in respect of “B” schedule property by the
deceased first defendant, which property has been devolved in his
favour, to the notice of this Court as provided under Order 22
Rule 10 of the CPC and defended his right as required under the law
as laid down by this Court in a catena of cases.
x x x x x
26. The legality of the alleged gift deed executed in favour of the
second defendant by the deceased first defendant in respect of the
Schedule 'B' property has been further examined by us and the same is
hit by Section 52 of the Transfer of Property Act, 1882, in the light of
the decision of this Court in the case of Jagan Singh v. Dhanwanti
(2012) 2 SCC 628, wherein this Court has laid down the legal
principle that under Section 52 of the Transfer of Property Act, 1882,
the 'lis' continues so long as a final decree or order has not been
obtained from the Court and a complete satisfaction thereof has not
been rendered to the aggrieved party contesting the civil suit. It has
been further held by this Court that it would be plainly impossible that
any action or suit could be brought to a successful termination if
alienations pendente lite were permitted to prevail.”
wherein the factum of the alleged gift deed was not made known to the
Court. This has been extrapolated in the case of Jagan Singh (dead) through LRs.
v. Dhanwanti & Anr. (2012) 2 SCC 628 thus :
 “32. The broad principle underlying Section 52 of the TP Act is to
maintain the status quo unaffected by the act of any party to the
litigation pending its determination. Even after the dismissal of a suit,
a purchaser is subject to lis pendens, if an appeal is afterwards filed,
as held in Krishanaji Pandharinath v. Anusayabai AIR (1959) Bom
475. In that matter the respondent (original plaintiff) had filed a suit
for maintenance against her husband and claimed a charge on his
house. The suit was dismissed on 15.7.1952 under Order 9 Rule 2, of
the Code of Civil Procedure 1908, for non-payment of process fee.
The husband sold the house immediately on 17.7.1952. The
respondent applied for restoration on 29.7.1952, and the suit was
restored leading to a decree for maintenance and a charge was
declared on the house. The plaintiff impleaded the appellant to the
darkhast as purchaser. The Appellant resisted the same by contending
that the sale was affected when the suit was dismissed. Rejecting the
contention the High Court held in para 4 as follows:
“..In Section 52 of the Transfer of Property Act, as it stood
before it was amended by Act 20 of 1929, the expression
‘active prosecution of any suit or proceeding’ was used. That
expression has now been omitted, and the Explanation makes it
abundantly clear that the 'lis' continues so long as a final decree
or order has not been obtained and complete satisfaction thereof
has not been rendered. At p. 228 in Sir Dinshah Mulla's
"Transfer of Property Act", 4th Edn., after referring to several
authorities, the law is stated thus:
“Even after the dismissal of a suit a purchaser is
subject to 'lis pendens', if an appeal is afterwards filed.”
If after the dismissal of a suit and before an appeal is
presented, the 'lis' continues so as to prevent the defendant
from transferring the property to the prejudice of the plaintiff, I
fail to see any reason for holding that between the date of
dismissal of the suit under Order 9 Rule 2 of the Civil
Procedure Code and the date of its restoration, the 'lis' does not
continue.”
33. It is relevant to note that even when Section 52 of TP Act was
not so amended, a Division Bench of Allahabad High Court had
following to say in Moti Chand v. British India Corpn. Ltd. AIR
(1932) All 210:
‘10, ….The provision of law which has been relied upon
by the appellants is contained in Section 52, TP Act. The active
prosecution in this section must be deemed to continue so long
as the suit is pending in appeal, since the proceedings in the
appellate court are merely continuation of those in the suit
…’(see Gobind Chunder Roy v. Guru Churn Kurmokar ILR
1988 15 Cal. 94).”
34. If such a view is not taken, it would plainly be impossible that
any action or suit could be brought to a successful termination if
alienations pendente lite were permitted to prevail. The Explanation to
this section lays down that the pendency of a suit or a proceeding shall
be deemed to continue until the suit or a proceeding is disposed of by
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.
35. In the present case, it would be canvassed on behalf of the
respondent and the applicant that the sale has taken place in favour of
the applicant at a time when there was no stay operating against such
sale, and in fact when the second appeal had not been filed. We would
however, prefer to follow the dicta in Krishanaji Pandharinath AIR
1959 Bom 475 to cover the present situation under the principle of lis
pendens since the sale was executed at a time when the second appeal
had not been filed but which came to be filed afterwards within thePage 36
36
period of limitation. The doctrine of lis pendens is founded in public
policy and equity, and if it has to be read meaningfully such a sale as
in the present case until the period of limitation for second appeal is
over will have to be held as covered under Section 52 of the TP Act.”
31. The doctrine of lis pendens would be applicable even to the proceedings in
the nature of an appeal as has been emphasized in the case of Krishanaji
Pandharinath v. Anusayabai AIR 1959 Bom 475 thus :
“3. It is true that in this case the sale effected by Sidram was after
the dismissal of the suit filed by Anusayabai and before the suit was
restored, but the alienation being before, the final decree or order was
passed and complete satisfaction or discharge of the decree was
obtained, it must be regarded as pendente lite. In s. 52 of the Transfer
of Property Act, as it stood before it was amended by Act XX of 1929,
the expression “active prosecution of any suit or proceeding” was
used. That expression has now been omitted, and the Explanation
makes it abundantly clear that the lis continues so long as a final
decree or order has not been obtained and complete satisfaction
thereof has not been rendered. At page 228 in Sir Dinshah Mulla’s
“Transfer of Property Act”, 4th edn., after referring to several
authorities, the law is stated thus:
“... Even after the dismissal of a suit a purchaser is subject to lis
pendens, if an appeal is afterwards filed.”

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4731-4732 OF 2010
T. Ravi & Anr. Vs. B. Chinna Narasimha & Ors. etc. 

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Whether doctrine of lis pendens is applicable to muslim law?

A preliminary objection has been raised on behalf of the respondents as to
very applicability of doctrine of lis pendens to Mohammedan law based upon
provisions contained in section 2 of T.P. Act. Section 2 is extracted hereunder :
“2. Repeal of Acts.--Saving of certain enactments, incidents,
rights, liabilities, etc. --- In the territories to which this Act extends
for the time being the enactments specified in the Schedule hereto
annexed shall be repealed to the extent therein mentioned. But nothing
herein contained shall be deemed to affect---
(a) the provisions of any enactment not hereby expressly
repealed;
(b) any terms or incidents of any contract or constitution of
property which are consistent with the provisions of this Act,
and are allowed by the law for the time being in force;
(c) any right or liability arising out of a legal relation
constituted before this Act comes into force, or any relief in
respect of any such right or liability; or
(d) save as provided by section 57 and Chapter IV of this Act,
any transfer by operation of law or by, or in execution of, a
decree or order of a Court of competent jurisdiction,
and nothing in the second Chapter of this Act shall be deemed to
affect any rule of Muhammadan law.”
No doubt about it that section 2 of T.P. Act protects rule of Mohammedan
law by excluding the provisions of Chapter II containing sections 5 to 53A thereof.
In our opinion, exclusion is conditional upon existence of rule of Mohammedan
law in that regard, that is to say if principle/rule of Mohammedan law provides as
to transfers lis pendens, the same would prevail and nothing in section 52 of T.P.
Act shall be deemed to affect any such rule. However, we have not been shown any
such rule of Mohammedan law containing provision as to lis pendens and thus, in
the absence whereof the provisions of section 52 T.P. Act would be attracted. The
submission as to non-applicability of section 52 of T.P. Act to Mohammedan law
is hereby rejected.  {Para 24 }
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4731-4732 OF 2010
T. Ravi & Anr.Vs. B. Chinna Narasimha & Ors. etc.

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Whether person claiming through judgment debtor can resist execution of decree?

 It, therefore, follows that, when the appellants are claiming
possession over the suit land on the basis of the tenancy created during
pendency of the Suit, then such tenancy or possession being hit by the
principle of lis pendens, under Section 52 of the Transfer of Property Act,
they have no right at all to resist execution of the decree. The law on this
aspect is no more res integra and no authority is required to state the
legal position that an obstructionist can successfully resist execution of
the decree only he is able to establish his independent right, title over the
property. In this case, on their own pleadings and evidence, the appellants
have miserably failed to do so, as they are claiming through the
Judgment-Debtor.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.797 OF 2016

Veljiben V. Satra 
 V
 Kanaiyalal Purshottamdas Shah 
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 5 TH OCTOBER 2016.
Citation: 2017(1) MHLJ 335 Bom

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When court should grant injunction restraining creation of third party interest in suit property?

Be that as it may, Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. 

Supreme Court of India

Maharwal Khewaji Trust (Regd.), ... vs Baldev Dass on 15 October, 2004

Bench: N Santosh Hegde, S.B. Sinha

CASE NO. Appeal (civil) 6792 of 2004

Citation:(2004) 8SCC 488

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When court can grant temporary injunction restraining creation of third party interest in suit property?

Merely because Section 52 of the Transfer of
Property Act is existing and operative, it does not mean that the

plaintiff is not entitled to pray for and get interim injunction
when   there   is   clear  prima   facie  case   in   favour   of   the
respondent/plaintiff to protect the suit property pending disposal
of   the   suit.     The   discretionary   relief   of   interim   injunction   is
granted on the basis of prima facie case, balance of convenience,
and consideration of irreparable loss with a view to protect the
suit property as it is and not to allow creation of irreversible
situation whereby legal and valid claim of the plaintiff is likely to
be defeated by transfer/alienation of the suit property by the
defendant in the case.  Dishonesty of litigant intending to defeat
the probable decree, can be prevented by appropriate interim
order, when necessary in the facts and circumstances of the case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER NO.8 OF 2015
Harish Bulchand Tejwani,

V
Nandlal Hakikatrai Motwani,

CORAM : A. P. BHANGALE, J. 
DATE : AUGUST 14, 2015
Citation: 2016 (1) ALLMR 127

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Whether rule of res judicata will prevails over doctrine of lis pendens?

Res judicata means a matter adjudicated upon or a matter on which judgment has been pronounced. The rule of res judicata has been put on two grounds, the one the hardship to the individual that he should be vexed twice for the same cause, and the other, public policy, that it is in the interest of the State that there should be an end of litigation. (See Lockyer v. Ferryman (1877) 2 App. Cas. 519). The rule is based on this principle that the cause of action which would sustain the second suit does not any more survive, it being merged in the judgment of the first. It is well established that every suit has got to be sustained by a cause of action, and if by the decision reached in the first suit, meaning thereby a previously decided suit, the cause of action no more survives, being merged in the judgment, where could be the cause of action left which would sustain the second suit after the decision was reached in the first suit ? Up to the time the decision was reached in the first suit it would be possible to say that there is a cause of action which could sustain both the suits. The suits are pending and the cause of action can be litigated between the contesting parties. Once, however, the cause of action ceases to exist being merged in a judgment duly pronounced by a Court, the decision reached in that suit becomes res judicata. The cause of action which till then sustained the second suit does not survive any more and no Court after such decision has been reached by a competent Court in the previously decided suit would under the provisions of Section 11 of the Civil Procedure Code or otherwise on general principles would try any suit in which the same cause of action is contested between the same parties or parties under whom they or any of them claim litigating under the same title. The matter would be concluded between the parties, provided of course, the matter in issue was directly and substantially in issue in the previously decided suit. If it was only collaterally in issue, it would not be res judicata. Subject to this and other conditions which have been laid down in Section 11 of the Civil Procedure Code a decision reached in the previously decided suit would be res judicata and there will be no question whatever of the same matter being litigated over again in the second suit which, as has been observed above, would not be capable of being sustained any further by reason of the cause of action having merged in the judgment pronounced in the previously decided suit. This is the rule of res judicata.

12. Lis pendens is an action pending and the doctrine of lis pendens is that an alienee pendente lite is bound by the result of the litigation. As Lord Justice Turner said in the leading case of Bellamy v. Sabine (1857) 1 De G& J. 566 (pp. 578, 584) :

It is, as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation,that it would plainly be impossible that any action ol1 suit could be brought to a successful termination, if alienations pendente the were permitted to prevail. The Plaintiff would be liable in every case to be defeated by the Defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding.

The Privy Council also has adopted the same principle in Faiyaz Husain Khany. Prag Narain (1907) I.L.R. 29 All. 339 : s.c. L.R. 34 I.A. 102 : s.c. 9 Bom. L.R. 656 where they lay stress on the necessity for final adjudication and observe that otherwise there would be no end to litigation and justice would be defeated. This doctrine of lis pendens is expounded in Story's Equity Jurisprudence, Vol. I, Section 406, in the terms following :

Ordinarily, it is true, that the decree of a court binds only the parties and their privies hi representation or estate. But he who purchases during the pendency of a suit, is held bound by the decree that may be made against the person from whom he derives title.... Where there is a real and lair purchase, without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy; for otherwise, alienations made during a suit might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim, pendents lite, nihil innovetur; the effect of which is not to annul the conveyance, but only to render it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them.

13. It is also settled law that in the absence of fraud or collusion the doctrine of lis pendens applies to a suit which is decided ex parte or by a compromise. If the compromise has not been fairly and honestly obtained, the suit which ended in a compromise will not operate as lis pendens. This is the doctrine of lis pendens.

14. These principles are quite clear, and we have got to determine whether in the event of a conflict arising between the rule of res judicata and the doctrine of lis pendens either the one or the other should prevail. As has been observed before, the rule of res judicata rests on the necessity of having a finality in litigation, and so does the doctrine of lis pendens. Both have the same end in view, the former that as between the same parties, or their representatives-in-interest litigating under the same title, once the decision is reached in a suit, the same question shall not be canvassed in any other suit, and the latter that whatever the party may choose to do by way of transfers pendente lite, the transferee pendente lite shall be bound by the result of the litigation. There is, however, this difference between the two that the rule of res judicata is concerned with more actions than one, whereas the doctrine of lis pendens is concerned with the very same suit during the pendency of which there is an alienation of the right, title and interest of one of the parties thereto. In the case of res judicata the same cause of action may sustain various actions simultaneously, but once the cause of action is merged in the judgment pronounced in a previously decided suit, there is no cause of action left to sustain the second suit. In the case of lis pendens, however, the cause of action continues as it was, sustaining the suit which has been filed for the adjudication of the rights of the various parties thereto and the doctrine applies during the pendency of that suit sustained on that cause of action. Whatever be the transfers pendente lite, they do not affect the result of the litigation qua the parties to the suit, and the transferee pendente lite is bound by the result of that litigation, irrespective of whatever has happened between his transferor and himself. Once, however, even in the case where the doctrine of lis pendens applies a judgment is pronounced and the cause of action is merged in the judgment, that judgment is the final pronouncement which binds not only the parties to the suit but also the transferees pendente lite from them. The conveyance is treated as if it never had any existence. As Story has put it in the passage above quoted, the effect of it is not to annul the conveyance but only to render it subservient to the rights of the parties in the litigation. Whether this decision is reached in the same suit or in a different one and whether the cause of action which sustained the suit in which the doctrine of lis pendens applies was merged in the judgment pronounced in the very same suit or in another one, the position would be that that decision would determine the rights of the parties and would be binding on them as well as the transferees pendente lite from them. The transferee pendente lite would be legitimately treated as the representative-in-interest of the parties to the suit and the judgment which has been pronounced, whether in the same suit or in another, would be determinative of the rights of the parties. There would be then no lis or action which would survive. The lis or action can only be sustained by a cause of action. If the cause of action was merged in a judgment duly pronounced by a competent Court, there would be no more occasion for any lis to continue pending. If a judgment duly pronounced on that particular cause of action was to merge the cause of action in itself, that judgment would govern the rights of the parties, whether it is pronounced in the same suit in which the doctrine of lis pendens applies or in any other. If it is in the same suit, there would be no question of the applicability of the rule of res judicata. The rule of res judicata would come into operation only if it was pronounced in another suit which came to be decided earlier than the one in which the doctrine applied. But once that judgment was pronounced it would have the effect of finally determining the rights of the parties and the cause of action which would sustain the suit in which the doctrine of lis pendens applied would be merged in the judgment duly pronounced in what may be described as the previously decided suit. In our opinion, therefore, the rule of res judicata prevails over the doctrine of lis pendens and we have come to the conclusion that once a judgment is duly pronounced by a competent Court in regard to the subject-matter of the suit in which the doctrine of lis pendens applies, that decision is res judicata and binds not only the parties thereto but also the transferees pendente lite from them.

IN THE HIGH COURT OF BOMBAY

First Appeal No. 112 of 1946

Decided On: 25.03.1949

 

Digambarrao Hanmantrao Deshpande vs. Rangrao Raghunathrao Desai  

Respondent: Rangrao Raghunathrao Desai

Hon'ble Judges/Coram:
Bhagwati and Y.V. Dixit, JJ.

Citation:AIR1949Bom367, 

1949(51)BOMLR623,MANU/MH/0019/1949

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