Whether defendant can take benefit of part performance as per S 53-A of TP Act even if his suit for specific performance of contract has become time barred ?

Shri Kasliwal has one more contention to be advanced. He tried to distinguish a case where the suit of the transferee in possession has time barred but no proceedings have been filed by him and where transferee in possession has filed a suit and it has been dismissed on the ground of limitation. I am afraid, there cannot be any distinction drawn between the two cases. The protection under the doctrine of part performance would be available in both the cases. Section 53-A does not confer any right upon a person in possession. What it purports to do is to prevent a plaintiff from recovering possession of the property already transferred to the defendant. It imposes upon the plaintiff a disability, the disability being of enforcing against the transferee in possession any right which a plaintiff may have in respect of the property. Even if the suit for specific performance by the defendant is barred by lapse of time, defendant is nevertheless entitled to resist the plaintiffs suit for ejectment and to defend his own possession. Further it has been made clear that what section 53-A seeks to do is to protect the possession of the defendant even where the defendant's right to obtain specific performance of the agreement has been barred by time. No such distinction can be made between a case where the purchaser has filed suit for specific performance and has failed on the point of limitation and a case where purchaser has not filed any case but. the suit has become time barred.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 5 of 1984

Decided On: 29.01.2000

Balasaheb Manikrao Deshmukh  Vs. Rama Lingoji Warthi

Hon'ble Judges/Coram:

A.S. Bagga, J.

Citation: AIR 2000 Bom 337

Print Page

Whether suit for specific performance of contract can be filed after limitation if transfer of property was not communicated to plaintiff?

 It is contended by learned counsel for the respondent nos. 1 and 2 that the suit was barred as the advance possession was given by the State Government in the year 1983 to the Town Improvement Trust but in the case, there is no evidence to prove the fact that the aforesaid so called transfer of possession, which was taken on the paper, was taken place in the knowledge of the appellant/plaintiff in absence of it this cannot be said that the suit of the appellant/plaintiff is time barred, therefore, learned trial Court has not committed any error holding that the suit is within time.

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

First Appeal No. 646/2013

Decided On: 01.08.2019

 Adarsh Balak Mandir Vs. Chairman, Nagar Palika Parishad, Harda and Ors.

Hon'ble Judges/Coram:

Jagdish Prasad Gupta, J.

Print Page

Whether decree passed in time barred suit is executable?

In support of his argument Mr. Bhaskar Bhattacharjee refers to a Supreme Court decision inIttyavira Mathai v. Varkey Varkey, . In the said case a certain decree obtained by a party in a suit was alleged to be a nullity as this relevant suit was time barred. The decree-holders had in the meantime transferred the decree and the transferee executed it. The validity of the decree was not challenged before its execution. In a subsequent suit the validity of the decree was challenged on the ground that it was obtained in a suit which was barred by Limitation. It was argued that although the point of Limitation was not raised in the previous suit, yet in view of the peremptory provisions of Section 3 of the Limitation Act was the duly of the Court to take notice of the provisions of the said section and decide the Validity of the suit on its basis. The Supreme Court held that even if the court decreed a time barred suit erroneously, it would at best be an illegality on the point of limitation which the court had jurisdiction to pass. The Court further held that if the legality of the decree was not challenged in an appropriate forum under the Civil Procedure Code, the decree would continue to be a valid decree being passed by a competent court having jurisdiction over it. The following portion of the judgment in paragraph 8 fully explains the stand taken by the court in this respect.

"The first point raised by Mr. Paikedy for the appellant is that the decree in O.S. No. 59 of 1093 obtained by Anantha Iyer and his brother in the suit on the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer was a nullity because the suit was barred by time. Even assuming that the suit was barred by time, it is difficult to appropriate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiciton to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vita! issue in the suit, cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong the decrees rendered by them cannot be treated as nullities. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh and contended that since the court is bound under the provision of Section 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. All that the decision relied upon says is that Section 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The Privy Council has not said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity."

7. The above passage of the judgment clearly explains the legal point enunciated by the Court. The decree passed in time barred suit suffers from the usual legal infirmity and can be successfully challenged in an appropriate appellate forum. But if it is not challenged, it becomes final if, of course, the court had the necessary jurisdiction to pass it. 

Calcutta High Court

Sk. Md. Ismail vs Sk. Anwar Ali And Others on 12 February, 1991

Equivalent citations: AIR 1991 Cal 391

Bench: A K Bhattacharj

Print Page