Chaman Lal vs Nanki

Dharam Chand Chaudhary, J.—In terms of the orders passed in this petition on 21.10.2014, a debatable question that in a situation where the JD was ex parte in the main suit and sold the suit property during the pendency of the suit to a third person, the Sub-Registrar can be directed to register the sale deed in the name of DH during execution proceedings or not, arises for determination. Learned counsel representing the decree holder-plaintiff has placed reliance on the judgment of the apex Court in Usha Sinha versus Dina Ram and Others, (2008) 7 SCC, 144, and also that of Kerala High Court in K.S. Khader versus Rajamma John Madathil and others, AIR 1994 Kerala 122, and urged that sale of the suit property by the JD to third person i.e. S/Shri Raj Kumar and Ravinder Singh during the pendency of the suit being hit by principle of lis pendens do not create any right, title or interest in their favour nor they can resist, obstruct or object the execution of the decree sought to be executed. A reference in this behalf can be made to the legal principles settled by the apex Court in Usha Sinah''s case supra, which reads as follows:--

"24. In Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, , this Court held that where the resistance is caused or obstruction is offered by a transferee pendente lite, the scope of adjudication is confined to a question whether he was a transferee during the pendency of a suit in which the decree was passed. Once the finding is in the affirmative, the Executing Court must hold that he had no right to resist or obstruct and such person cannot seek protection from the Executing Court. The Court stated;

"It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under rule 97 or rule 99" shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act." (emphasis supplied)[See also Sarvinder Singh Vs. Dalip Singh and Others,

We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum. In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.

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.

So far as the present case is concerned, the facts are no more in dispute. As already noted earlier, Title Suit No. 140 of 1999 was instituted by the respondent-plaintiff on April 10, 1999. Thus, the litigation was pending in respect of the property and the matter was sub-judice. The appellant thereafter purchased the property from original defendant Nos. 4 and 5 by a registered sale deed on February 15, 2000 i.e. during the pendency of the suit. It is also not in dispute that ex-parte decree came to be passed against the defendants on May 24, 2001. In the situation, in our considered opinion, the doctrine of lis pendens would apply to the transaction in question, and the High Court was wholly right in holding that the case was covered by Rule 102 of Order XXI of the Code. The appellant could not seek protection of pendency of suit instituted by her. The Executing Court was not justified in granting stay of execution proceedings. The High Court was, hence, right in setting aside the order of the Executing Court."

It is seen that the facts in the case before the apex Court were identical in nature as in the present one before this Court. The vendor i.e. defendant-JD was duly served with the notice issued by this Court not only in the suit, but also in these proceedings. She however, opted for not putting appearance and rather allowed herself to be proceeded against ex parte. Therefore, it cannot be said that she had no knowledge about the pendency of the suit or the present proceedings.

The crux of the law laid down by the High Court of Kerala in K.S. Khader''s case supra, is that the only effect of transfer of property during the pendency of the suit is that such transfer shall be subject to the decree or order to be ultimately passed in the suit. The ratio of judgment ibid reads as follows:--

"9. Section 52 of the Transfer of Property Act is in the following terms:

Transfer of property pending suit relating thereto - During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose." The effect of the doctrine of lis pendens as embodied in S. 52 of the Transfer of Property Act is not to annul all voluntary transfers effected by the parties to a suit but only to render it subservient to the rights of the parties thereto under the decree or order which may be made in that suit. Its effect is only to make the decree passed in the suit binding on the transferee if he happens to be a third person even if he is not a party to it. The transfers will remain valid subject, however, to the result of the suit. That this is the true legal effect of the provisions will be clear from the latter part of the rule which states that ''the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein. The doctrine of lis pendens as observed by Fawcett J. in Krishnabai Pandurang Salagare Vs. Savlaram Gangaram Kumtekar, , is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a Court in a suit should be binding not only on the litigating parties but on those who derive title from them pendent elite whether with notice of the suit or not. In fact what is intended by the provision is only that the transfers pendent elite should not affect the rights of any other party to the suit under any decree or order made therein and no more. In other words, the doctrine of lis pendens is not a doctrine which mandates that the transaction pendent elite should be treated as non est in law. In Nagubai Ammal and Others Vs. B. Shama Rao and Others, , Venkatrama Ayyar, J (as he then was) while dealing with the particular aspect of the doctrine of lis pendens relevant for the purpose has observed thus:

" But it is argued for the appellants that having regard to the words of S. 52 that pendente lite "the property cannot be transferred", such a transfer must, when it falls within the mischief of that section, be deemed to be non est, that in consequence Keshavananda must, for purposes of lis pendens, be regarded as the owner of the properties, notwithstanding that he had transferred them, and that the Official Receiver who succeeded to his rights had a right to be impleaded in the action.

This contention gives no effect to the words "so as to affect the rights of any other party thereto under any decree or order which may be made therein", which make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto."

Again the Supreme Court has in Jayaram Mudaliar Vs. Ayyaswami and Others, , held that:

".........The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward." While coming to the above conclusion the Supreme Court has relied upon the following statement of law contained in the Corpus Juris Secundum, Vol. LIV, page 570:

"Lis pendens literally means pending suit and the doctrine of lis pendens has been defined as the jurisdiction, power or control which a Court acquire over property involved in a suit pending the continuance of the action, and until final judgment therein." After quoting the above observation, the Supreme Court has further observed as follows:

"Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject-matter of litigation so that parties litigating before it may not remove any part of the subject-matter outside the power of the court to deal with it and thus make the proceedings infructuous." It may be very useful to remember this background of S. 52 of the Transfer of Property Act when we consider the scope and effect of the said Section."

In view of the principles laid down in the judgments cited supra, Sub-Registrar (Rural), Shimla, is directed to register the sale deed of the suit property in the name of plaintiff-DH, uninfluenced by the revenue entries of the suit land in the name of subsequent purchaser S/Shri Raj Kumar and Ravinder Singh, in accordance with law, within six weeks from the production of a copy of this order before him by Mr. Dheeraj K. Vashista, Advocate, the Commissioner already appointed.

Additional amount of Rs. 11,000/- be paid to the Commissioner towards his fee. List for consideration of the report of the Commissioner on 6th April, 2015.

An authenticated copy be supplied to the Commissioner for needful