Madras High Court
Chinnammal vs Kuppusamy on 19 July, 2004
Equivalent citations: 2004(3)CTC794, (2004)3MLJ518
ORDER S. Sardar Zackria Hussain, J.
1. The plaintiffs 2 to 6 in O.S. No. 841 of 1981 on the file of the Court of District Munsif, Thiruchengode, are the revision petitioners in this Civil Revision Petition. This revision is directed against the dismissal of R.E.P. No. 59 of 1992 on the file of the District Munsif, Thiruchengode.
2. The revision petitioners, viz., plaintiffs 2 to 6, are the widow, daughter and sons of deceased first plaintiff Perianna Nadar. Perianna Nadar filed suit in O.S. No. 841 of 1981 against the respondent/defendant for specific performance of contract of sale pursuant to the agreement dated 15.7.1978 entered into between them, after causing lawyer's notice dated 04.02.1979 to which no reply was sent by the defendant. Though it appears that the defendant resisted the suit by filing written statement, he remained ex parte at the time of trial, which resulted in ex parte decree dated 11.02.1983. Originally, the suit was filed in O.S.No. 661 of 1979 on the file of the Sub-Court, Salem, which was transferred to the Court of District Munsif, Thiruchengode, and renumbered as O.S. No. 841 of 1981. During the pendency of the suit, Kondappa Naicker and his wife Dhanalakshmi filed an application to get themselves impleaded as parties claiming that they purchased the suit property of 1 acre and 80 cents in Survey No. 189/1 from the respondent herein on 25.4.1980. It appears that the said petition was dismissed and thereafter, the suit was decreed ex parte as stated above. The dismissal of the said petition in the unnumbered application of the year 1983 was challenged in this Court in C.R.P. No. 1219 of 1983 and the revision petition was dismissed with liberty to the revision petitioners to file a separate suit to vindicate their rights and substantiate their claim that the said suit is of collusive character. The revision was dismissed on 9.10.1985 and pursuant to the said order passed by this Court, Kondappa Naicker and his wife Dhanalakshmi filed suit in O.S. No. 325 of 1986 on the file of Subordinate Judge, Sankari, for declaration and injunction against the respondent herein and Perianna Nadar and 9 others in which the ex parte decree was passed on 19.9.1990. Perianna Nadar filed a petition to set aside the ex parte decree in O.S. No. 325 of 1986 with petition to condone delay of 899 days, which were dismissed by this Court on 27.8.1993. Special Leave Petition in S.L.P.(Civil) No. 20010 of 1993 filed in supreme Court challenging the order of this Court dated 27.8.1993 was also dismissed on 3.01.1994. In the meantime, Perianna Nadar filed suit in O.S. No. 515 of 1988 in the Court of District Munsif, Thiruchengode, and on his death, the same was continued by the revision petitioners, claiming as his legal representatives, against Kondappa Naicker and his wife Dhanalakshmi and 9 others for permanent injunction that the defendants in that suit should not put up construction in the suit property, viz, 1 acre and 80 cents in Survey No. 189/1, Thokkavadi village, Thirchengode Taluk. The suit, after contest, was dismissed on 17.4.2000. No appeal was filed against the dismissal of the said suit. In the meantime, Perianna Nadar filed R.E.P. No. 59 of 1992 to execute the decree passed in his favour in O.S.No. 841 of 1981 and on his death, the revision petitioners were impleaded as his legal representatives. The R.E.P. was contested by the respondent herein that the decree in O.S.No. 841 of 1981 is not executable. Since the suit in O.S.No. 325 of 1986 filed by Kondappa Naicker and his wife Dhanalakshmi was decreed declaring that the plaintiffs in that suit are entitled to the suit property and permanent injunction was granted restraining the respondent Kuppusamy herein and Perianna Nadar, who originally instituted the suit in O.S.No. 841 of 1981, and 10 others from disturbing his possession of the suit property and as such, on the basis of the decree in O.S. No. 841 of 1981, the decree holder is not entitled for execution of the registered sale deed in respect of the suit property in Survey No. 189/1 Thokkavadi Village, Thiruchengode Taluk from the respondent.
3. The R.E.P. was also resisted by the respondent herein stating that Kondappa Naicker and his wife Dhanalakshmi have been in possession of 94 cents in which 81 cents of land have been sold by them as house sites to several persons and the persons, who purchased the house sites, have put up houses and various constructions.
4. Before the trial Court, the first plaintiff Perianna Nadar examined himself as P.W.1 while the respondent herein examined himself as R.W.1 besides examining one Dhanalakshmi as R.W.2. Exs.A.1 to A.5 were marked on the side of the petitioners while Exs.B.1 to B.4 were marked on the side of the respondent. Exs.X.1 to X.13 have also been marked. The Executing Court, considering the case advanced on either side and accepting the case of the judgment debtor/respondent herein, dismissed the Petition as per order dated 17.4.2000. The correctness of the said order is challenged in this revision.
5. Heard the learned counsel appearing for the revision petitioners as well as the learned counsel appearing for the respondent.
6. The learned counsel appearing for the revision petitioners argued that inasmuch the suit in O.S.No. 661 of 1979 was originally instituted in Sub-Court, Salem, which was subsequently transferred to the Court of District Munsif, Thiruchengode, and renumbered as O.S.No. 841 of 1981, for specific performance of the contract of sale on the strength of the sale agreement dated 15.7.1978 executed by the respondent herein in favour of Perianna Nadar, who filed the suit after causing lawyer's notice on 04.2.1979 for which no reply was sent by the defendant/respondent herein, ex parte decree was passed in the suit on 11.2.1983. He submitted that such decree is very much executable for which purpose, R.E.P. No. 59 of 1992 was filed by deceased Perianna Nadar, in whose place, on his death, the revision petitioners have been impleaded as his legal representatives. The learned counsel further submitted that despite the fact that pursuant to the order made by this Court in C.R.P. No. 1219 of 1983, Kondappa Naicker and his wife Dhanalakshmi filed the suit in O.S.No. 325 of 1986 against the respondent Perianna Nadar and 10 others for declaration and permanent injunction from disturbing the possession of the suit property claiming that they have purchased the suit property from the respondent herein on 25.4.1980 during the pendency of the suit in O.S.No. 661 of 1979, which was originally instituted in Sub-Court, Salem, and which, on transfer, renumbered as O.S. No. 841 of 1981, and as such, the same is hit by lis pendens and non-est in the eye of law and the said sale and the alleged subsequent sales by the said Kondappa Naicker and his wife Dhanalakshmi in favour of several persons as house sites are non-est in the eye of law.
7. As regards non-impleading of Kondappa Naicker and Dhanalakshmi, who filed O.S.No. 325 of 1986, in R.E.P. No. 59 of 1992 filed by the deceased Perianna Nadar, now continued by the revision petitioners as his legal representatives, the learned counsel submitted that they being unnecessary parties and since no decree was obtained against them, they have not been made as parties in the said R.E.P. In support of such contention, the learned counsel for the revision petitioners relied on the decision of this Court in Raghavan Alias Bhagavathikannu Pillai and 6 Others, 1991 (1) L.W. 84. The learned counsel also relied on the decision of this Court in K. Ponnambalam v. Subdra Devi, 1994 (1) M.L.J. 809:
"Purchaser of the suit land by means of a sale deed of later date is not a necessary or proper party to execution proceedings. Maxims. Nemodat qua non habit."
8. Learned counsel placed reliance on the decision in Balwinderjit Kaur v. Financial Commissioner (Appeals), Punjab and Anr., in which it is held that the vendees purchasing property from vendors during pendency of a civil suit against vendors for specific performance of agreement to sell property, would be bound by decree against vendors.
9. Learned counsel also placed reliance on the decision in Abdul Aziz and Ors. v. District Judge, Rampur and Anr., :
"Decree for specific performance. Execution of Objection by transferees asserting that decree was not binding on them, they being not parties to suit. Objection unsustainable, in view of doctrine of lis pendens. Said transferees were as much bound by decree as their transferor, the judgment-debtor."
10. Reliance was placed on by the learned counsel in Marappa Gounder and Ors. v. Chennimalai Gounder and Ors., 1992 T.L.N.J. 231, in which it was held as follows:
"The object of Section 52 of Transfer of Property Act is to afford protection of law in respect of a property which is the subject matter of litigation, being alienated to the prejudice of the decree which may ultimately result in the pending suit. The law does not allow litigant parties to give others, pending the litigation rights, in the property under dispute, so as to prejudice the opposite party. The decision of the Court shall be binding not only on the litigating parties, but also on those who derive title under them by alienations pendente life"
11. The learned counsel relied on the decision of the Full Bench of Mysore High Court in Khaja Bi and Ors. v. Mohammad Hussain, AIR 1964 Mys. 269:
"Transfer of Property Act (1882), S. 52. Suit for specific performance of contract. Sale during pendency held affected by doctrine of lis pendens."
12. Learned counsel relied on the decision of a Division Bench of this Court in Vijayalakshmi Leather Industries (P) Ltd., Chennai - 3 v. K. Narayanan and Ors., 2003 (1) L.W. 772:
"C.P.C., Order 2, Rules 98 and 101, T.P. Act, Section 52/Lis Pendens. Transferee pendente lite, rights of. Expression "Transferee from the judgment debtor" in Rules 98, 102 would include transferee of a transferee. ...... ....... ....... ............ ......... it is clear statutory bar on the parties to proceedings from transferring a property which is the subject matter of litigation. Such transfer pendente lite is non est in the eye of law. Contention of the appellant that he was not a party to the proceeding and he was not impleaded as party and consequently the decree is not binding on him negatived".
13. The learned counsel further relied on the decision of this Court in Ayeesha Bibi and Ors. v. S. Mohamed Ibrahim and Ors., 2002 (4) CTC 545 : 2002 (3) M.L.J. 695 in which this Court has held as follows:
"On going through the judgments impugned, it is clear that the doctrine of "lis pendens" is intended to strike at the attempts by parties to a litigation to circumvent the jurisdiction of a Court, in which a dispute of rights or interests in immovable property is pending, by private dealings, which may remove the subject matter of litigation from the ambit of the Court's power to decide a pending dispute or frustrate a decree."
14. The learned counsel appearing for the respondent/judgment debtor argued that inasmuch as the suit in O.S.No. 325 of 1986 filed by Kondappa Naicker and his wife Dhanalakshmi, pursuant to the order of this Court in C.R.P.No. 1219 of 1983, seeking declaration and permanent injunction in respect of the suit property in survey No. 189/1 of Thokkavadi Village, Thiruchengode Taluk, subject matter of this revision, was decreed, the said judgment has become final in view of the fact the petition filed by Perianna Nadar to set aside ex parte decree with petition to condone delay was rejected and C.R.P.No. 1219 of 1983 was dismissed by this Court and Special Leave Petition preferred in S.L.P. (Civil) No. (S) 20010 of 1993 was also dismissed. In view of such decree in O.S.No. 326 of 1986, the decree in O.S.No. 841 of 1981 filed for specific performance of the contract of sale is not executable. The learned counsel further submitted that inasmuch Kondappa Naicker and his wife Dhanalakshmi have not been made as parties in R.E.P.No. 59 of 1992 and in view of the fact that Kondappa Naicker and his wife Dhanalakshmi have sold 81 cents as house sites to various parties to put up various construction of houses, the decree in O.S. No. 841 of 1981 is not executable and as such, the dismissal of R.E.P. No. 59 of 1992 by the Executing Court need not be set aside.
15. It is well settled that the Executing Court cannot go beyond the scope of the decree. The deceased Perianna Nadar, husband of the first revision petitioner and father of revision petitioners 2 to 5, originally instituted a suit in Sub-Court, Salem in O.S. No. 661 of 1979, which, on transfer, renumbered as O.S. No. 841 of 1981 on the file of the District Munsif, Thiruchengode, for specific performance of contract of sale by the respondent herein on the strength of the agreement of sale dated 15.7.1978 after causing lawyer's notice dated 4.2.1979 to which no reply was sent and obtained a decree as early as on 11.2.1983. The petition filed by Kondappa Naicker and his wife Dhanalakshmi to implead them as parties in the suit was dismissed, which was confirmed in C.R.P.No. 1219 of 1983. Kondappa Naicker and his wife Dhanalakshmi filed the said petition claiming that they have purchased the suit property from the respondent herein on 25.4.1980 and during the pendency of the suit in O.S.No. 661 of 1979, originally instituted in Sub-Court, Salem, subject matter of this revision, which was on transfer renumbered as O.S.No. 841 of 1981. As such, the said sale in favour of Kondappa Naicker and his wife Dhanalakshmi, being at later point of time and during the pendency of the suit in O.S.No. 661 of 1979, originally instituted by Perianna Nadar, is clearly hit by lis pendens. It follows that the ex parte decree obtained in O.S.No. 325 of 1986 by Kondappa Naicker and his wife Dhanalakshmi against the respondent herein and Perianna Nadar and 10 others cannot give any helping hand to the respondent/judgment debtor herein and say that the decree in the earlier suit in O.S.No. 841 of 1981 is not executable in view of the decree obtained in the latter suit in O.S.No. 326 of 1986. The sale in favour of Kondappa Naicker and his wife Dhanalakshmi was very much after the filing of the suit in O.S. No. 661 of 1979, originally instituted by Perianna Nadar and on transfer renumbered as O.S.No. 841 of 1981 and after the agreement of sale in favour of Perianna Nadar by the respondent herein dated 15.7.1978 and on the basis of which, suit in O.S. No. 841 of 1981 was filed by Perianna Nadar. No doubt, it appears that Kondappa Naicker and his wife Dhanalakshmi have sold nearly about 81 cents as house sites to several persons. As rightly argued, the sale in favour of Kondappa Naicker and his wife Dhanalakshmi by the respondent on 25.4.1980, during the pendency of the suit in O.S.No. 661 of 1979 and after sale in favour of Perianna Nadar dated 15.7.1978, is clearly hit by lis pendens. The further sale of 81 cents by Kondappa Naicker and his wife Dhanalakshmi to several persons as house sites are also hit by lis pendens and all the sales are non-est in the eye of law. Though Kondappa Naicker and his wife Dhanalakshmi obtained decree in O.S. No. 325 of 1986, the decree in O.S.No. 841 of 1981 obtained by deceased Perianna Nadar for specific performance of contract of sale against the respondent is in force. Therefore, R.E.P.No. 59 of 1992 in O.S.No. 841 of 1981, originally filed by the deceased Perianna Nadar and on his death, now continued by his widow, daughter and sons, viz., the revision petitioners herein, is very much executable. Therefore, the order of the Executing Court refusing to execute the decree in O.S.No. 841 of 1981, subject matter of this revision, cannot be said to be proper and it is to be set aside being erroneous. Inasmuch as the R.E.P. No. 59 of 1992 is now pending for executing the decree in O.S. No. 841 of 1981 dated 11.2.1983, the Executing Court is directed to dispose of the same expeditiously.
16. In the light of the discussion made above, the Civil Revision Petition is allowed with cost. The order of the Executing Court in R.E.P. No. 59 of 1992 on the file of the Court of District Munsif, Thiruchengode, is set aside. The Executing Court is directed to execute the decree expeditiously.