Jai Chand vs Gopal

M.M. Kumar, J.—The Objector-petitioner has invoked the jurisdiction of this Court u/s 115 of the Code of Civil Procedure, 1908 (for bravity, ''the Code'') and has challenged the judgment dated 4,8.2003 passed by the learned Additional District Judge, Yamuna Nagar, holding that the decree holder is a bona fide purchaser and the sale deed dated 10.3.1993 executed in favour of the objector-petitioner is hit by the principle of lis pendens as contemplated by Section 52 of the Transfer of Property Act, 1992.

Brief facts of the case are that decree-holder Gopal had filed Civil Suit No. 406 CS on 30.7.1991 against the Judgment-debtor Smt. Kishni (deceased) for specific performance of an agreement to sell dated 27.5.1991 in respect of the property measuring 236 Sq. yards. The suit of the Decree-holder Gopal was decreed on 8.2.1993 in his favour by Sub-Judge, 1st Class, Jagadhari. A direction was issued allowing one month time to the Judgment-debtor Smt. Kishni to execute the sale deed and get it registered in favour of the Decree-holder. The decree was ex parte. However, no sale deed was executed and the Decree-holder-Respondent Gopal filed Execution petition 8 of 1994 on 9.3.1994. Before the Executing Court, the Objector-petitioner raised various objections which have been dismissed by the executing Court vide its order dated 4.4,1998 which reads as under;-

"Hon''ble High Court in Sunita Jain''s case (supra) (1996 P.LJ 52) held that the rule of lis pendens has been enacted to safeguard the right of the plaintiff in cast-defendant transfers the suit property during the pendency of the suit. Any transfer made during the pendency of the suit would be subject to the decision of the suit. No doubt at times transfer of the property during the pendency of the suit gives rise to multiplicity of the suits, This being so the subsequent alienation of the part of the suit properly measuring 139 Sq. yards in favour of the applicant-objector by way of registered sale deed dated 10.3.1993 by the same persons, who earlier executed the agreement to sell in favour of Decree-holder during the pendency of the civil suit filed by the Decree-holder for specific performance is hit by the doctrine of lis pendens as envisaged u/s 52 of the Transfer of Property Act, Both the issues, are thus, answered in favour of the Decree-holder and against the appellant-objector."

On appeal filed before the learned District Judge, this order has been upheld vide order dated 2.9.1993.

Mr. Vivek Bhandari, learned counsel for the objector-petitioner has argued that Kishni Devi-Judgment debtor was not entitled to sue this properly beyond her share and the sale-deed executed by Kishni Devi as well as Anti Devi on 10.3.1993 in favour of the objector-petitioner has to be held to be valid. The learned counsel has pointed out that Anti Devi had appointed Suresh Kumar, her son as her power of Attorney along with Kishni Devi, who executed, the sale-deed registered on 10.3.1993. The learned counsel has. argued that the objector-petitioner has been living in the aforementioned house alongwith his parents, The learned counsel has alleged that Kishni Devi had deliberately suffered an ex parte decree dated 8.12.1993, which is subject mailer of the execution proceedings and that the decree-holder deliberately did not implead the objector-petitioner as party in the execution. According to the learned counsel, the objector-petitioner has already filed a Civil suit which is pending adjudication before the Civil Judge.

I have thoughtfully considered the submissions made by the learned counsel and am of the view that the objector-petitioner has failed to show the share of Anti Devi in the property in dispute. Despite the framing of various issues by the executing Court, the objector-petitioner has failed to prove the share of Anti Devi. It is further pertinent to mention that the principle of Us pendens as contemplated by Section 52 of the Act would come in play, The sale-deed in favour of the objector-petitioner was executed and registered on 10,3,93 whereas the Civil Suit No. 406 of 1991 was instituted on 30.7.1991 and the judgment and decree was passed on 8.12.1993. It is thus obvious that the sale-deed was executed during the pendency of the civil suit. Section 52 of the Act incorporates the doctrine of lis pendens which has been the subject matter of a large number of judgments. It is well-settled that the transfer of any immovable property during the pendency of the civil suit without permission of the court would be hit by the principle of lis pendens and the decree passed by the court would not be adversely affected. Reliance in this regard may be placed on a recent judgment of the Supreme Court in the case of Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and Another, . The earlier view taken by the Supreme Court in Savitri Devi Vs. District Judge, Gorakhpur and Others, has also been referred and the view taken in Sarvinder Singh Vs. Dalip Singh and Others, has been followed. It is further pertinent to mention that in Indu Bhusan De and Others Vs. State of West Bengal and Others, it has been held that where l/3rd share of the entire plot in dispute has been claimed, a transferee during the pendency of the proceeding of the Civil Suit would be bound by the litigation in respect of the entire plot. On the basis of precedent as well as the principles. I am of the view that the instant petition is devoid of merit and is thus liable to be dismissed.

For the reasons recorded above, this petition fails and the same is dismissed.