Pritam Singh and ors. vs Virsa Singh

J.V. Gupta, J.

This judgment will also dispose of RSA 404 of 1988, Pritam Singh etc v. Virsa Singh etc. and Civil Revision No. 659 of 1988, Balbir Singh etc. v. Gurnam Singh etc.

One Khazan Singh was the original owner of the suit land. On his death, the land was mutated in favour of Bakhshish Singh, 4th degree collateral of the deceased. However, Gurnam Singh son of Atma Singh filed a suit for possession on the basis of a will, said to have executed in his favour by Khazan Singh (deceased). The said suit was dismissed by the trial Court on 521979. In appeal, the said decree of the trial Court was set aside and the suit was decreed on 2341980. RSA 1107 of 1980 was filed by the defendants which was dismissed by this Court on 2451983, as it was stated on behalf of the defendantappellants, that they were prepared to surrender their rights in the suit property and have their appeal dismissed as withdrawn if they were paid Rs. 23,500/. This condition was accepted by the plaintiff respondents and they paid Rs. 23,500/ in Court to the appellants in presence of counsel for the parties. As a result thereof, the appeal was dismissed and the decree of the lower appellate Court was affirmed.

Pending this litigation, the defendants in the suit had sold away the suit land vide different sale deeds. to the present appellants and others. One sale deed was executed on 15 111979 with respect to 35 Killas of land. The other sale deed is dated 2981980, It is admitted case of the parties that the said transfer was hit by the principle of his pendens, but, according to the plaintiff appellants in the present suit, the provisions of Section 52 of the Transfer of Property Act, 1882 were not applicable, because the decree was obtained by the plaintiffs collusively, as the appeal was got dismissed on compromise without any notice to the subsequent vendees. In these circumstances, two suits were filed by the subsequent vendees, giving rise to RSA Nos. 403 and 4105 of 1988 The allegations made in the plaint, paragraph 4, were that the appeal was withdrawn by the defendants before the Hon''ble High Court on 2451983 on receipt of Rs. 23.500/ while in collusion with Gurnam Singh. In the entire proceedings in the suit/appeal between Gurnam Singh and Mohinder Singh etc the plaintiffs were never parties to the said litigation and as such, the plaintiff, are not bound by the illegal act of the defendants and others, The plaintiffs were neither parties nor they had any notice or knowledge of the pendency of the litigation between Gurnam Singh and Mohinder Singh etc.

The suit was contested inter alia on the ground that no such suit was maintainable, as the plaintiffs had stepped into the shoes of the judgmentdebtors and the only remedy was to file objections under section 47 of the Code of Civil Procedure, 1908 (the Code in short). The trial Court found under issue No. 3 that in the present case, the decree is not collusive at all. The suit of the contesting defendants failed in the first Court and they won the same in the first appellate Court on 2341980. The sale deed has been executed after the suit was decreed in that Court and the other party filed an appeal in the High Court which was pending when the sale respondent deed was executed This means that till the sale deed was executed, there was no collusion. Rather, defendant No. 1 Virsa Singh has sold the land before getting money from the contestingdefendants and withdrew his appeal at that stage. Consequently the suit of the plaintiffs was dismissed. In appeal the Additional District Judge affirmed the said findings of the trial Court and found, that no decree was passed by the High Court in pursuance of the alleged collusion. That being so, it cannot be argued that the decree passed by the Additional District Judge merged into any decree passed by the High Court. When the decree passed by the Additional District Judge was contested one and it was not affected in view of the withdrawal of the appeal pending before the High Court therefore, collusion between the parties would be surely hit by Section 53 of the Act. Its natural consequence would be that these suits are barred u/s. 47 of the Code.

The learned counsel for the plaintiff appellants submitted that objections u/s. 47 of the Code were filed by the plaintiffs, but the same were dismissed vide Order dated 18101984. According to the said order, the law on the point is that if the objector has purchased the property during the litigation, he cannot prosecute his objections and cannot stop the execution of the decree. Reference was made to Hukam Chand v. Santosh Kumari, AIR 1985, Pb & Hr. 181 wherein the objections were dismissed summarily, Admittedly. the said order of the executing Court was never challenged by the plaintiffs, because it appears that they have already filed the present suits which were pending at that time.

Learned counsel for the appellants submitted that the provisions of Section 52 of, the Act are not applicable, as the decree obtained by the plaintiffs was collusive and they had no notice of that decree. In support of his contention he has relied upon Gurmel Singh & others v. Attar Kaur & others, 1984 CLJ (C&Cr) 170. On the other hand, the learned counsel for the respondents has submitted that the proceedings could not be said to be collusive in any manner nor was in the plaint any such collusion ever alleged or pleaded, nor was there any issue to that effect. Moreover in the High Court, the appeal was got dismissed, as withdrawn on receipt of Rs. 23,500/ by the defendantrespondents And no decree as such was passed by the High Court which could be said to be collusive. Execution is being sought of the decree passed by the Additional District Judge which was passed after contest. Thus, argued the learned counsel, that the present suit filed the subsequent vendees was not maintainable as the transfer in their favour was hit by the principle of lis pendens. In support of his contention, he referred to Mt. Deoki and others v. Jawala Prasad, AIR 1928 Allahabad 679, Durga Parshad v. Custodian, AIR 1960 Punjab 341 and Shiva Pujan v. Baban Lal, AIR 1959 Patna 13. He further submitted that the only remedy was to file objections to the execution which were filed and dismissed vide order dated 18101984. Having filed the objections, no civil suit as such was maintainable. He further argued that even the objections under Order 21 Rule 97 of the Code, giving rise to the civil revision were also not maintainable, on behalf of the subsequent vendees having stepped into the shoes of the judgment debtors. In support of his contention, reference was made to Harijan W.W P. cum S. Coop Socy, Ltd. v. Maya Wati, 1984(2) RCR(Rent) 331 (P&H) : AIR 1985 Pb. & Hr. 181 and Hukam Chand v. Santosh Kumari, 1984 PLR 436.

After hearing the learned counsel for the parties and going through the case law cited at the bar, I am of the considered view that there is no merit in this Appeal. Section 52 of the Act reads as under:

"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 proceeding which is not collusive and in which any right to immovable 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 the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

Explanation : For the purposes of this section, the pendency of a suit or proceedings shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a 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."

In the plaint nothing has been stated as regards the alleged collusion between the parties in the earlier suit filed by Gurnam Singh. Nor was there any issue to that effect. It is well settled that the persons who purchased the property pending the litigation step into the shoes of their vendors. In Khemchand Shankar v. Vishnu Hari, AIR 1983 SC 124, the apex Court observed that

"The position of a person on whom any interest had devolved on account or transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate their names may not have been shown in the decree, preliminary or final."

Thus, the only remedy available with the transferees was to file their objections in the execution petition, if any, which they did file and the same had been disposed of vide order dated 18101984 which had become final between the parties. No separate suit, as such, was maintainable on behalf of the subsequent vendees. In these circumstances, there is no illegality in the concurrent findings or the two Courts below, as to be interfered with in second appeal by this Court. Consequently, the appeals. fail and the same are dismissed with costs.

As regards the civil revision, it is no more disputed that in case the suits fail, the petitioners in the civil revision have no independent right to maintain their objections under Order 21 Rule 97 of the Code. Consequently the civil revision also fails and is dismissed.