M. P: Vasudevan Pillai vs G. Remesan Nair and Others

Shamsuddin, J.—The petitioner in E A. No.: 60 of 1977 in OS. No. 169 of 1955 on the file of the Additional Subordinate Judge, Alleppy is the appellant.. The above E.A. was filed under Order XXI Rules 99 and 100 of the Code of Civil Procedure, for re-delivery of the petition schedule property. Petitioner was dispossessed of the petition schedule property by delivery in execution of a decree in O S. No. 169/55. According to the petitioner, he purchased the petition schedule property with an extent of 41 cents under Ext. Al sale deed dated 23-10-1967 from M/s.G.L. Kilikar, Cochin, a partnership firm. M/s.G.L. Kilikar, Cochin purchased the property in court auction in execution of the decree obtained by them in O.S. No. 570 of 1954 on the. file of the Munsiff''s Court, Vaikora against the 3rd respondent herein. Pursuant to the court auction, in O.S. No. 570 of 1954, M/s.G.L. Kilikar took delivery of the property through court on 3-8-1956 and they were in possession and enjoyment of the same. Thereafter, the petitioner purchased the property from M/s.G.L. Kilikar under Ext. A1. Since the petitioner was employed under the Central Government, he entrusted the management of the property with Nadmathul Islam Society, a registered Co-operative Society and the said Society was taking usufructs on his behalf. While so, the 1st respondent herein purchased the property in an auction sale in execution of the decree in O.S.No. 169 of 1955 obtained by the 2nd respondent.

2.. In the objection filed by the 1st respondent, he contended that neither the petitioner nor his predecessor M/s.G.L. Kilikar had right in the property, that it was after O. S. No. 169 of 1955 was filed, the attachment and sale proceedings in O.S.No. 570 of 1954 of the Munsiffs Court, Vaikom took place and that the above proceedings do not affect the safe and delivery in execution of the charged decree in O.S. No. 169 of 1955 as those'' proceedings were hit by principle of lis pendens.

The lower court held that as the decree in O.S.No 169 of 1955 is passed in a suit on mortgage and is a charged decree and as it was subsequent to the institution of that suit, that the court sale and delivery proceedings in O.S. No. 570 of 1954 took place, the proceedings in O.S.No. 570/1954 were hit by lis pendens and that in the circumstances, the petitioner is not entitled to get re-delivery of the property which was taken delivery by the 1st respondent pursuant to the auction purchase in O.S. No. 169 of 1955. Aggrieved by the order of the lower court, this E.F.A. has been filed.

The learned counsel for the appellant contended that the doctrine of lis pendens is not applicable to the facts of the case, that the appellant was a bonafide purchaser for valid consideration and that in the circumstances, the order of the court below is unsustainable.

In order to appreciate the respective contentions raised by the parties, it is necessary to mention a few facts. O.S.No. 570 of 1954 '' was filed on 20-10-1954. it was decreed on 7-3-1955. There was an interim order of attachment effected on 1-1-1955 pending trial of the suit. In execution of decree, there was a court sale and the property was purchased by M/s- G.L. Kilikar, the plaintiff in that suit. The appellant purchased the plaint schedule property from. M/s.G.L. Kilikar on 23-10-1967. The decree in O.S.No.169 of 1955 would show that it was a charged decree based on a ''pattuvaravu panayadharam'' executed by the 3rd respondent and others in favour of the 2nd respondent, decree holder. O.S.No.169 of 1955 was filed on 12-9-1955 and the decree was passed on 15-12-1955. In execution of the decree, the court sale was effected on 11-9-1975 and delivery was effected on 19-1-1977. The appellant filed the above E.A. on 24-1-1977 for,re-delivery.

There is a catena of authorities which took the view that though Section 52 of the Transfer of Property Act does not apply in terms to involuntary sales, such as court auction sale, the principles of Us pendens would apply to such alienations as well.

The Travancore - Cochin High Court considered this question in Thommanthony Madachi v. Parvathi Lekshmi (ILR 1950 TC 636) and held that :-

"A court sale in execution of a money decree held subsequent to the institution of a mortgage suit is vitiated by the rule of lis pendens. This is so even if the property had been attached before the institution of the mortgage suit."

This is the view taken in Bellamkonda Subbiah Vs. Jetti Kotamma and Others, , N Natarajan Achary vs.K.P. Rajappan Pillai ( 1970 KLR 582), Govinda Marar Vs. Sivarama Kurup, . Madhavan v. Kartha Swamy ( 1980 KLT (SN) 98) and Varkey Varkey Vs. N.M. Kurian and Others, .

The question was considered by the Supreme Court in Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, . The court held that:

"It is true that Section 52 of the T.P. Act strictly speaking does not apply to involuntary alienations, such as court sales, but it. is well established that principle of lis pendens applies to such alienations also"

This position has been reiterated by the Supreme Court in Kedar Nath Lal and Another Vs. Ganesh Ram and Others, . In view of the principles enunciated in the above decisions, it has to be held that the court sale and delivery in O.S. No 570 of 1954 is hit by Section 52 of the Transfer of Property Act and that therefore the delivery taken in execution of the decree in O.S. No. 169 of 1955 which is charged decree cannot be affected by the sale in execution of the decree in O.S.No. 570 of 1954 and the delivery effected therein. It follows. that the appellant who is a transferee from the auction purchaser in O.S. No. 570 of 1954 is not entitled to re-delivery.

The appeal fails and it is accordingly dismissed. However, there will be no order as to costs.