Patna High Court
Thakur Pandey vs Bundi Ojha And Ors. on 6 March, 1980
Equivalent citations: AIR1981PAT27, AIR 1981 PATNA 27, (1981) BLJ 158, 1980 BBCJ 369, 1980 BLJR 493, (1980) PAT LJR 337
JUDGMENT Hari Lal Agrawal, J.
1. This appeal by defendant No. 1, arises out of a suit filed by the plaintiff-respondent, under the provisions of Order XXI, Rule 63 of the Civil P, C. for a declaration that the property fully described at the foot of the plaint purchased by him in court sale, was not liable to be sold in the mortgage decree obtained by defendant No. 1. The relevant facts, briefly stated, are as follows :--
The plaintiff had purchased 3 bighas 6 kathas and 2-1/2 dhurs of land appertaining to plot No. 2843 and others under khata Nos. 452 and 395, being the other half of the disputed lands, from Loknath Tiwary by a sale deed dated 26-11-1938 disposing of his half share in the 8 bighas and odd land. The remaining half share was sold by Khublal Tiwary, his uncle, to Ganga Bishun Tiwary (defendant No. 2). Defendant No. 2 first created a mortgage over the property in favour of the plaintiff and subsequently sold the land to one Jumman Mian, however, leaving in deposit the mortgage money, by a registered deed of sale dated 4-6-1938.
2. These are the admitted facts of this case; Raghunandan Tiwary and Khublal Tiwary were brothers. They had equal interest in a piece of land measuring 6 bighas 12 kathas and 5 dhurs situated in village Belsa, half of which is the subject matter of the suit, Raghunandan had two sons, Loknath and Uma Dutt, Uma Dutt, however, died leaving his widow Rati Kuer, Loknath and Rati Kuer sold their half share to the plaintiff on 26-11-1930 and according to the plaintiffs case, he has been coming in possession over the land in question by virtue of his purchase.
3. Khublal, the other co-sharer of the half interest, also sold his share to defendant No. 2 as already said earlier Jumman Mian, the purchaser from defendant No. 2 died leaving behind three sons and a widow. The sons are defendant Nos. 4 to 6 and the widow is defendant No. 7 in the suit. The mortgage suit brought by the plaintiff on the basis of the simple mortgage bond was decreed and defendant Nos. 4 to 7 paid up the dues and thus satisfied the decree.
4. The plaintiff brought another suit, namely Money Suit No. 423 of 1952 against defendant Nos. 4 to 6 for realisetion of some handnote dues amounting 10 Rs. 642/-. This suit was also decreed and the decree was put in execution against the disputed land, namely half share of Raghunandan Tiwary. In execution of this decree the plaintiff purchased the disputed land in Court auction and delivery of possession was effected on 17-10-1957.
5. Ganga Bishun, defendant No. 2, had also executed a simple mortgage in favour of defendant No. 1 the appellant before us, who happened to be his maternal cousin, in respect of the disputed land. This mortgage was concealed from Jumman Mian. Title mortgage suit Number 156 of 1951 was accordingly instituted by defendant No. 1 against defendant No. 2 and defendants Nos. 4 to 7, the purchasers of his interest. In this suit a preliminary decree was passed on 26-3-1953 and an application for final decree was made on 3-12-1957 i.e. beyond the prescribed period of 3 years from the date of the preliminary decree but nonetheless the final decree was prepared and put in execution in Execution Case No. 1191 of 1958 and the property in suit was purchased by defendant No. 1, The plaintiff preferred a claim under O. XXI R. 58 of the Civil P. C., but the executing Court by its Order dated 15-9-1970 dismissed the same and accordingly the plaintiff filed the present suit. The plaintiff based his claim by virtue of his purchase of the suit land in Execution Case No. 306 of 1956 on 13-3-57 where the decree was passed in Money Suit No. 423 of 1952 on the basis of the handnote as already stated earlier, and in this way his case was that the right, title and interest in the suit property were already acquired by him which could not be resold in execution of the final decree in mortgage suit.
The suit was contested by defendant No. 1 and one of the grounds urged on his behalf was that the sale in the money execution case was void as it was hit by the doctrine of lis pendens having been held, during the pendency of the title mortgage suit, which must be deemed to be pending till the date of the final decree which was prepared on 9-5-1958.
6. The trial court dismissed the suit holding that the final decree in the title mortgage suit was valid and the purchase by the plaintiff in the money execution case was hit by the doctrine of lis pen-dens. The plaintiff accordingly filed an appeal. The lower appellate Court recorded the following findings, (1) Ganga Bishun (defendant No. 2) played a fraud on Jumman Mian by concealing the existence of the encumbrance (the simple mortgage), and (2) the application for final decree was barred by limitation and, therefore, the final decree was without jurisdiction and void and as such, the plaintiff's purchase in execution of the money decree was not hit by lis pendens. It accordingly decreed the plaintiff's suit.
The defendant No, I has accordingly filed this second appeal which has been referred to Division Bench for hearing.
7. Mr. Kailash Roy, appearing for the appellant, contended that the final decree, although passed beyond the period of limitation, was not without jurisdiction and, therefore, the purchase by the plaintiff was hit by the doctrine of lis pendens, which must yield to the sale in favour of defendant No, 1 in execution of the final decree. In support of his contention he placed reliance firstly upon the decision in Bhaiga Parida v. Gannath Khandai (AIR 1918 Pat 492). In that ease also the final decree was passed much beyond the period of 3 years and in execution of the decree the property was sold. A suit was instituted by the Judgment debtor to challenge the same on the ground that the decree was obtained by fraud. It was held that merely because the decree was passed beyond the period of limitation, could be no ground for setting it aside and, in any event, the suit for the said purpose was not maintainable. The remedy of the judgment debtor was to make an application within a period of 30 days from the date of his knowledge of the sale. It was further held that question of limitation was not a question of jurisdiction.
The Supreme Court also in the case of Ittyavira Mathai v. Varkey "Varkey (AIR 1964 SC 907) observed that where a Court having jurisdiction over the subject matter and the parties, passes a decree, even if the suit was barred by time, such decree cannot be treated as a nullity and be ignored, as although the Court is bound to decide right, may decide wrong and even though it decides wrong, it would not be doing something which it! had no jurisdiction to do. The remedy of the aggrieved party was to get the decree set aside by preferring an appeal against it. It is no doubt true that Section 3 of the Limitation Act is peremptory in nature and enjoins a duty upon the Court to dismiss an application or suit filed after the period of limitation, it does not say that the Court shall not entertain them and where the Court does not give effect to the rule of limitation and thus fails to perform its duty, it cannot be said that the Court acted without jurisdiction. In that event, it commits an error of law and it is well settled that an error of law can be corrected only in accordance with the remedies provided under the procedural law. A Judgment or order may be bad in law but until and unless it is set aside it will hold good and would be operative and binding on the parties. No decision taking a contrary view was cited by the learned counsel for the respondents.
8. In view of the above discussion, I would hold that the final decree passed; in the title mortgage suit in favour of defendant No. 1 cannot be said to be nullity or without jurisdiction.
9. The next contention of Mr. Kailash Roy was that the purchase by the plaintiff of the property in question in execution of his money decree was hit by the doctrine of lis pendens inasmuch as the suit of defendant No. 1 must be deemed to be pending until the date of the passing of the final decree. Learned counsel appearing for the respondents, however, tried to meet this contention by raising an argument that the doctrine of lis pendens, if at all, would apply to voluntary sales and not to involuntary transfers, and inasmuch as the plaintiff had purchased the lands in suit in a Court auction, the same was not hit by the doctrine of lis pendens, It is, no doubt, true that Section 52 of the Transfer of Property Act which enshrines this doctrine of lis pendens prohibits transfer "or otherwise dealing" of any immoveable property by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order, except under the authority of the Court and on such terms as it may impose and, therefore strictly speakit does not apply to Court sales as was also held by some of the High Courts earlier, but now the settled law as that though the section itself may not apply to involuntary alienations, the principle of lis pendens applies to them as well and suffice it may be to cite the decision of the Supreme Court in Kedarnath Lal v. Sheonarain (AIR 1970 SC 1717) where on a consideration of an authority of the Privy Council and some other High Court it was clearly laid down that the principle of lis pendens applies to involuntary alienations such as Court sale also. To the same effect is another decision of the Supreme Court in the case of Lakkala Lakshmamma v. Lakkala Muni Krishnama Naidu ( (1969) 1 SC WR 74).
10. Now remains for consideration a subsidiary question as to whether a suit will be deemed to be pending until the date of the final decree as the section new applies to transfers during the entire "pendency" of the suit. Them has been a cleavage of authority on this question in various High Courts but by the addition of the explanation in the year 1929, the question is answered by itself to a great extent. The explanation very clearly provides that the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding and to continue until the suit or proceeding has been disposed of by a final decree or order and complete till the satisfaction or the discharga of such decree or order has been obtained. It is, therefore, obvious that the pendency of the mortgage suit was very much there until the passing of the final decree and inasmuch as the plaintiff had purchased the property under mortgage suit, during the pendency of the said suit, his purchase must be held to be hit by the doctrine of Us pendens.
Counsel for the plaintiff respondent has also submitted that inasmuch as the plaintiff was not a party to the mortgage suit of the appellant, he should not be deemed to be hit by the doctrine of lis Ipendens. The contention is also devoid of any merit inasmuch as what is prohibited by the doctrine of lis pendens is the act of a party of the suit or proceeding so as to affect the right of the other party thereto. In Money Suit No. 423 of 1952 the decree was passed against defendant Nos. 4 to 6, These defendants were also defendants in the subsequent mortgage suit in question. Therefore, those defendants were not entitled in law to deal with the property so as to affect the right of the other party to the suit, namely, the appellant who was the plaintiff of the mortgage suit. The presence of the alienee, namely, the plaintiff, was therefore not at all necessary in the suit ac-cording to the scheme of Section 52 of the T. P. Act. The action of the party and, on the facts of the present case, that of the executing Court in the money execution case which purported to alienate the interest, of the party concerned, is rendered nugatory by the operation of law, namely, the doctrine of lis pendens automatically. The inevitable result is followed by fiction of law, and, therefore, the presence of the third party is not at all required,
11. The learned Additional subordinate Judge, therefore, completely misdirected himself in decreeing the plaintiff's suit The trial court has taken a very correct view in the matter. 1 would accordingly allow the appeal, set aside the judgment and decree of the Court of appeal below and restore those of the trial Court In the circumstances, however, I shall leave the parties to bear their own costs, Chaudhary Sia Saran Sinha, J.
12. I agree.