Karnataka High Court
K Sivaramakrishna S/O Venkatarama Rao vs Narayana S/O Dharmalinga Settiar on 5 July, 2013
Author: N.Kumar
Bench: N. Kumar
R
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 5th day of July, 2013
BEFORE
THE HON'BLE MR. JUSTICE N. KUMAR
REGULAR SECOND APPEAL NO. 2329 OF 2006
BETWEEN:
1. K. Sivaramakrishna
Age: 40 years
S/o Venkatarama Rao
Mangamma Compound
Sanjeevarayanakote Post
Bellary Taluk
2. K. Ravishankar
Age: 34 years
S/o Venkatarama Rao
Mangamma Compound
Sanjeevarayanakote Post
Bellary Taluk ...Appellants
(By Sri M.V.V. Ramana, Advocate)
AND:
1. Narayana
Age: 32 years
S/o Dharmalinga Settiar
Rep. by his GPA holder
2
G. Babu
S/o Gangadhar Settiar
Door No.25, Ward No.XXV
Karkanakunta Well
Devingar
Bellary - 583 103
2. Valmiki Pennappa
Age: 52 years
S/o Obalappa
S/o Sridharagadda Village
Bellary Taluk - 583 103 ... Respondents
(R-1 unserved; R2 deceased no need to bring LRs of deceased
R2 vide order dated 11-02-2013)
This RSA filed under Section 100 of CPC, against the
judgment and decree dated 12-04-2006 passed in RA
No.165/2004 on the file of the Prl. District Judge, Bellary,
dismissing the appeal filed against judgment and decree
dated 26-09-1998 passed in OS No.3/1987 on the file of the
Prl. Civil Judge (Jr. Dn.), Bellary.
This RSA coming on for admission this day,
the Court delivered the following:
JUDGMENT
This appeal is preferred by defendants 3 and 4 challenging the concurrent finding recorded by the Courts below that the plaintiff has established his title to the suit 3 schedule property and that he is entitled for possession of the same.
2. For the sake of convenience, the parties are referred to as per their original rank in the suit.
3. The subject matter of the suit is land bearing Sy.No.257 measuring 14 acres 31 cents situated in Sanjeevarayana Kote Village, registration and sub- registration District at Bellary paying land revenue of Rs.10.45.
4. The case of the plaintiff is that, he is an absolute owner of the schedule property having purchased the same for a sum of Rs.3,220/- being the highest bidder in an auction sale held by the Court in Execution Case No.308/1982, initiated to execute the decree in O.S.No.791/1978 on the file of the Principal Civil Judge, Bellary. The Court auction was held on 27.8.1984 and 4 subsequently the sale was duly confirmed. Prior to the sale, the suit property was attached on 22.10.1982 in the said Execution proceedings. After confirmation of the sale, the plaintiff took possession of the suit land on 28.1.1985 through the Court.
5. The plaintiff learnt that that the defendant in collusion with the judgment debtor T.Mareppa who is his relative had taken a nominal sale deed on 18.8.1983 under registered document No. 3204/83-84 of Bellary sub- registrar's office; the sale deed was never intended to be acted upon as it was intended to defeat the decree passed in O.S. No. 791/1978. The sale in favour of the defendant dated 18.3.1983 being subsequent to the date of attachment i.e., 22.10.1982, is inoperative in law and not binding on the plaintiff; and no right, title, interest over the schedule property is conferred in favour of the defendant by virtue of the sale deed dated 18.8.1983. The plaintiff is a bona fide purchaser for valuable consideration.
5
6. After obtaining possession of the suit property, the plaintiff continued to be in possession of the same until it was disturbed in September 1985 by the defendant. Thereafter, the plaintiff issued a lawyer's notice to the defendant calling upon him not to obstruct his possession and the same was duly acknowledged by the defendant, but he failed to issue any reply. However, the defendant illegally occupied the suit property and got mutated the revenue records in his name and was shown as Pattedar of suit land on the basis of the inoperative sale deed referred above. The protest of the plaintiff in this regard, before the Tahsildar of Bellary, was in vain and the Tahsildar, by his order dated 8.5.1986 directed the plaintiff to seek remedy in a Civil Court. As cloud is cast on the title, suit came to be filed for declaration of the plaintiff's right, title and interest in the suit property and also for its possession.
7. The suit was originally filed against Valmiki Pennappa. Subsequently, the plaint was amended by 6 introducing para 6(a) to the effect that while the matter was so pending, the 1st defendant has executed a registered sale deed dated 16.4.1992 in favour of the 2nd defendant for valuable consideration in respect of 3.03 acres and another registered sale deed in favour of 3rd defendant in respect of the landed property measuring 6 acres 35 cents in the same survey number. The said property is nothing but the plaint schedule property; defendants 2 and 3 being fully aware that the said properties have been attached by the Court in Execution Case No. 308/1982 on 22.10.1982 have purchased the landed properties in collusion with the 1st defendant to defeat the rights of the plaintiff in the said property and that the said sale deeds have been intentionally executed by 1st defendant in favour of defendants 2 and 3. Since the properties purchased by defendants 2 and 3 have been attached by the Court, the said sale transactions are void. The properties are purchased by defendants 2 and 3 during the pendency of the suit and the execution proceedings, having knowledge of the order of attachment 7 passed by the Court and therefore they are not bona fide purchasers for valuable consideration.
8. The first defendant who was duly served did not enter appearance and was placed exparte. The 3rd defendant, however, filed a detailed statement contesting the claim; this written statement is a blanket denial of all the allegations in the plaint. After denying all the allegations, at para 11 he has pleaded his case specifically that, the 2nd defendant purchased a portion of the suit schedule property measuring 3.73 acres under a registered sale deed dated 16-4-1992 from one Pennappa for a valid consideration and the 3rd defendant has purchased a portion of the land measuring 6 acres 35 cents through a registered sale deed dated 16-4- 1992 for valuable consideration. Defendants 2 and 3 have purchased the suit schedule property for valuable consideration after making due enquiry with regard to the title and after verification of all the relevant records. Defendants 2 and 3 have purchased only to an extent of 8 10.08 acres of land out of 14.31 acres in the said survey number; after purchasing the same, the mutation was also effected in their names; record of rights also stands in their names and they were put in possession of the property on the date of execution of the registered sale deed in their favour.
9. The 1st defendant had purchased the suit property for a valuable consideration on 18-08-1983 from T. Mareppa and the record of rights stood in his name. Since the date of purchase, he was in possession and enjoyment of the suit property till the same was sold in favour of defendants 2 and 3. Even otherwise the sale deed executed in favour of the 1st defendant is prior to the alleged confirmation of sale and issuance of sale certificate in favour of the plaintiff as such, the plaintiff will not get any right, title or interest over the suit schedule property. 9
10. Even otherwise the plaintiff is not entitled to the relief as claimed in the plaint without seeking the relief of cancellation of sale deeds executed in favour of the defendants 2 and 3. The allegation of attachment of the suit schedule property before confirmation of the sale will not give rise to cause of action. Nor will the same confer any right, title or interest over the suit schedule property. The attachment is only for collection of the amount, but not to convey title to the property; defendants 2 and 3 are the bonafide purchasers for valuable consideration and their rights have to be protected under law.
11. The plaintiff is not entitled to any relief as claimed in the plaint and has filed the suit only to harass and coerce defendants 2 and 3 to come to unconscionable terms and to grab their property. The impleading application is filed by the plaintiff after expiry of three years from the date of execution of the sale deed. Hence the suit of the 10 plaintiff is barred by time and is liable to be dismissed. The plaintiff is not entitled to any relief as claimed.
12. An additional written statement is filed on behalf of the defendants contending that the defendants 2 and 3 were minors as on the date of alleged attachment and related proceedings. Hence knowledge of attachment of suit properties by the Court can not be attributed to defendants 2 and 3. Even otherwise, either attachment of the suit property or issuance of sale certificates are not mentioned in the encumbrance certificate or any revenue documents. Alleged attachment by the Court is void in law and the Court has not followed the procedure prescribed under Order XXI Rule 54 of the Code of Civil Procedure. The order sheet simply mentions "attach properties of the judgment debtor" and the same is not sufficient under law. The copy of the order should be affixed on conspicuous part of the Court house and also in the Grama Chavadi or Village Accountant's Office and in the Office of the Deputy Commissioner and also 11 in the Office of the Grama Panchayat. Once the said procedure which is a mandatory requirement under Order XXI Rule 54 of the Code of Civil Procedure is not followed, then, the attachment itself is illegal and void in law; the subsequent issuance of proclamation of sale and the auction conducted by the Court is also void. The Court proceedings are not binding on the defendants as the said proceedings are without jurisdiction.
13. The second defendant filed a memo adopting the written statement filed by the third defendant.
14. On the aforesaid pleadings, the trial Court framed the following ten issues:
1. Whether the plaintiff proves that the plaintiff has purchased the suit schedule land through a court auction was held on 27-08-1984?12
2. Whether the plaintiff proves that he was in possession of the suit land in pursuance of the court sale?
3. Whether the plaintiff proves that the registered sale deed dated 18-8-1983 executed by the judgment Debtor Marappa in favour of the 1st defendant?
4. Whether the defendants proves that the IInd defendant and III defendant have purchased the land Sy.No.257 to an extent of 10.08 acres out of 14.31 cents through Registered Sale deed dated 16-04-1992?
5. Whether defendants proves that the 2nd and 3rd defendants are the bonafide purchasers and they are in possession of the suit schedule property?
6. Whether the suit is property valued and C.F. paid is insufficient?
7. Whether the suit is barred by law of limitation?
8. Whether the suit is not maintainable without seeking the relief of cancellation of sale deed?13
9. Whether the plaintiff is entitled for the relief as sought for?
10. What order or decree?
15. The plaintiff in order to substantiate his claim examined his power of attorney holder by name Babu as P.W-1 and produced 12 documents, which are marked as Exs.P-1 to 12. On behalf of defendants, the third defendant- Ravishankar was examined as D.W-1; the defendants also produced 22 documents, which are marked as Exs.D-1 to D-22.
16. The trial Court on consideration of the aforesaid oral and documentary evidence on record held that the plaintiff has proved that he purchased the suit schedule land through Court auction, which was held on 27.08.1984. Further he has also proved that he was put in possession of the suit land in pursuance of the Court sale. He has also proved that sale deed executed by the judgment debtor in 14 favour of Mareppa on 18.08.1993 is void, as it was executed during the subsistence of valid attachment of the property. The plaintiff has proved that defendants-2 and 3 have purchased an extent of 10 acres 8 cents out of 14 acres 31 cents through registered sale deed dated 16.04.1992 and defendants 2 and 3 have failed to prove that they are bonafide purchasers. The suit is not barred by law of limitation and that it is maintainable without seeking the relief of cancellation of the sale deed. Therefore it proceeded to grant declaration that the plaintiff is the owner of the suit schedule property. He is entitled to possession of the suit schedule property and that he is also entitled for future mesne profits from the date of suit till he is put in possession of the suit property.
17. Aggrieved by the said judgment and decree of the trial Court, defendants-2 and 3 preferred Regular Appeal in RA No.165/04 before the District Judge, Bellary. The 15 learned District Judge after reassessment of the material on record, formulated the following points for consideration.
1. Whether the plaintiff proves that he has purchased the suit schedule land bearing Sy.No.257 measuring 14 acres 31 cents in a court auction held on 27-08-1984?
2. Whether the plaintiff proves that the registered sale deed, dated 18-08-1983 executed by T. Mareppa, in favour of the first defendant is illegal and not binding on the plaintiff?
3. Whether the plaintiff proves that the defendants 2 and 3 who have purchased the land to the extent of 10 acres 8 cents in Sy.No.257, on 16-4-1992 from the first defendant are bound by the result of this case?
4. Whether the suit is barred by law of Limitation?
5. Whether the suit is not maintainable without seeking the relief of cancellation of sale deeds.
6. Whether the plaintiff is entitled to possession of the suit land measuring 14 acres 31 cents in Sy.No.257?
16
7. Whether the interference in the order of the trial Court is necessary?
8. What order?
18. He held that the finding recorded by the trial Court that the plaintiff has proved that he has purchased the suit property in Court auction held on 27.08.1984 is valid and accordingly he affirmed the said finding. He also held that the sale deed executed by T. Mareppa, the judgment debtor, in favour of first defendant herein on 18.08.1983 is void as it was executed during the subsistence of the order of attachment. Further it held that as defendants-2 and 3 have purchased a portion of the suit property during the pendency of the suit, the right depends on the result of this proceedings. He affirmed the finding of the trial Court that the suit is not barred by time and there was no necessity for the plaintiff to seek cancellation of the sale deed in favour of defendants-2 and 3. It also held that decree for possession is valid and legal. Accordingly, it 17 affirmed the judgment and decree of the trial Court and dismissed the appeal.
19. Aggrieved by the said judgment and decree of the two Courts below, the plaintiff has preferred this second appeal.
20. The substantial questions of law that arise for consideration in this second appeal are as under:
1) Whether the sale deed executed by the judgment debtor, T. Mareppa, in favour of the first defendant in this suit is void because of the attachment of the suit property by virtue of the order of the Court in Execution case on 22.10.1982?
2) Whether defendants-2 and 3 can claim to be the bonafide purchasers for valuable consideration without notice of attachment as well as the Court sale of the suit property?
18
21. The learned Counsel for the appellant assailing these judgments contends that the attachment of the suit property in the execution proceedings is not in accordance with Order 21 Rule 54 CPC and therefore the sale deed executed by the judgment debtor in favour of the first defendant is not vitiated and the first defendant had a valid title to the suit property. Secondly he contended that before the purchase of the property, defendants-2 and 3 looked into the revenue records, obtained encumbrance certificate and made all requisite enquiries. Since, this attachment and sale certificate issued by the Court was not recorded anywhere, they proceeded to purchase the property and therefore they are bonafide purchasers for valuable consideration without notice of the attachment as well as the sale of the suit property in Court auction. Therefore he submits that the Courts below were not justified in granting declaration in favour of the plaintiff or in holding that the sale deed executed in favour of the first defendant is void and therefore the judgment and decree passed by the Courts below 19 requires to be interfered with and the suit of the plaintiff is to be dismissed.
POINT NO.1
22. Undisputed facts are, the suit property was attached in Execution No.308/82 on the file of the Principal Munsiff at Bellary, which was filed to execute the decree for money in O.S.791/78 and the order of attachment is dated 21.10.1982. Ex.P-3 is the Mahazar drawn in presence of the witnesses attaching the suit property on 22.10.1982. The said Mahazar discloses that the order of attachment was affixed to the suit land and it was also proclaimed by beat of drums in the village, declaring that the judgment debtor should not alienate the said property and nobody else shall purchase the said property. Ex.P-9 is the attachment warrant issued by the Executing Court. It reads as under:
"In the Court of the Principal Munsiff at Bellary Exc.No.308/82 O.S. No.791/78 The Mareppa Sanath Kumar //vs// S/o Talavaru S/o Sankar Setty Mareppa 20 Major Agriculturist Merchant's clerk D.No.5/XIV ward Bellary Bellary ...J.Dr. ...D.Hr "Whereas you have failed to satisfy a decree passed against you on the 29th day of January 1979 in OS. 791/78 in favour of Sanath Kumar, the plaintiff for a sum of Rs.2,645/-. It is ordered that you, the J.Dr, be and you are hereby prohibited and restrained until the further order of this Court from transferring or changing the property specified in the schedule hereunto annexed by sale, gift or otherwise and that all persons be and they are hereby prohibited from receiving the same by purchases, gift or otherwise.
Given under my hand and the seal of this Court dated this 8th day of October 1982.
SCHEDULE
Lands situate in the village of
Sanjeevarayanakota in Bellary Taluk, within the registration and sub-registration District of Bellary.
Sl.No. Sy.No. Extent
1 256 9-12
2 257 14-31
21
Note: It is full Survey numbers. Hence
boundaries are not necessary.
Sd/-xxxxx
Sheristadar"
23. It also discloses that one copy of the said proclamation was exhibited in the Deputy Commissioner's Office notice board and one copy was affixed on the notice board of the Principal Munsiff and thereafter the list of properties attached was submitted to the Court.
Subsequently, the property was brought to sale on 27.08.1984 and the plaintiff purchased the suit property;
the sale was confirmed and the sale certificate came to be issued on 12.11.1984. Thereafter, as per the direction of the Court, the Bailiff went to the spot along with the plaintiff auction purchaser and put him in possession of the suit property in the presence of the witnesses on 28-01-1985 and the acknowledgment issued by the plaintiff for having received possession was also produced before the Court. In the meanwhile, the judgment debtor T. Mareppa, executed a 22 registered sale deed in favour of the first defendant herein on 18.8.1983, who in turn sold an extent of 10 acres 37 guntas out of the suit land in favour of defendants-2 and 3 under two registered sale deeds dated 16.04.1992, i.e., during the pendency of the plaintiff's suit for declaration and possession.
24. Therefore, it is in this background we have to appreciate the contentions of defendants 2 and 3 that a mere order of attachment would not have the effect of attaching the property. Only in the event of effecting attachment in terms of Order 21 Rule 54 CPC, it would be effective and alienations made subsequent thereto would become void. According to defendants-2 and 3, though the order of attachment was passed and proclaimed by beat of drums, the copy of the order was not affixed at a conspicuous place in the suit property and then upon a conspicuous place of the Court House and also in the Office of the Collector of the District in which the land is situated.23
Therefore it is contended that the mandatory requirement of Order 21 Rule 54 CPC is not complied with, thereby the attachment is rendered invalid and consequently, the sale by the judgment debtor in favour of the first defendant is a valid sale.
25. In support of the above contention, several judgments are relied upon. Before we look into these judgments, it is necessary to look into the provisions of Code of Civil Procedure dealing with attachment and sale of immovable property.
26. Section 64 of Civil Procedure Code deals with the effect of private alienations after attachment of the immovable property and it reads as under:
"Section 64 Private alienation of property after attachment to be void.-
(1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any 24 payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.
[(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.
Explanation.- For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets."
27. A reading of the aforesaid provision makes it clear that if a private alienation is made subsequent to passing of an order of attachment, such private alienation shall be void as against all claims enforceable under the attachment. In other words, the law declares such alienation to be void and therefore there is no necessity for 25 any Court to declare such alienation as void. The object of Section 64 is to prevent fraud on decree holders and to secure the rights of attaching creditor against the attached property by prohibiting private alienation pending attachment. Mere passing of an order of attachment does not ipso facto constitute attachment. It must be validly effected by a procedure laid down in Order 21. The said attachment creates no charge or lien upon the attached property. There is nothing in any of the provisions of the Code of Civil Procedure which, make the attaching creditor a secured creditor or create any charge or lien in his favour over the property attached. It only confers a right on the decree-holder to have the attached property kept in custodia legis for being dealt with by the court in accordance with law. It merely prevents and avoids private alienation and does not confer any title upon the attaching creditors. But an attaching creditor acquires, by virtue of the attachment, a right to have the attached property kept in custodia legis for 26 the satisfaction of his debt, and an unlawful interference with that right constitutes an actionable wrong.
28. An attachment made under Order 21 Rule 54, operates as a valid prohibition against alienation from the date on which the necessary proclamation is made and a copy of the order of attachment is affixed as provided by that rule, and not from the date of the order of attachment. Where the property is sought to be attached is transferred and registered after attachment, the order of attachment prevails over the transfer. The transactions, which fall in the mischief of sub-section (1), are void as against all claims enforceable under the attachment. A person, who claims under a private transfer from the judgment-debtor after the attachment, is not entitled to notice under Order 21 Rule 22, as the decree holder is entitled to ignore all alienations subsequent to the attachment.
27
29. Therefore, it is necessary to examine whether the attachment has been made in accordance with Order 21 Rule 54 of CPC, which reads as under:
"54. Attachment of immovable property:- (1) where the property is immovable the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.
(1A) the order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for setting the terms of the proclamation of sale."
30. Order 21 Rule 54 of CPC prohibits the judgment debtor from transferring or creating charge on the property attached in any manner and all persons from taking benefits from such transfer or charge. As long as the order of attachment is operating, no third party rights can be created. The prohibition against the alienation of attached property comes into operation from the date on which the 28 attachment is proclaimed. The privy council in the case of A.T.K.P.L.M. MUTTHIAH CHETTY VS. PALANIAPPA CHETTI AND OTHERS reported in AIR 1928 PC 139, interpreting this provision held that no property can be declared to be attached, unless firstly the order of attachment is being made and secondly in the execution of that order, other things prescribed in the rule in the Code has been done. There must be first an order of attachment and secondly in execution of that order the formalities prescribed therein have to be complied with, i.e., there should be a prohibitory order restraining a person from in any way alienating the property sought to be attached. The order of attachment will have to be proclaimed by beat of drum or other customary mode. The order will also have to be affixed on conspicuous part of the property and then upon a conspicuous part of the Court house. For an order of attachment to be effective, these conditions have to be complied with. A mere order of attachment is therefore not sufficient to invalidate the alienation made subsequent to 29 the order, but before the attachment is actually effected pursuant to the order. The conditions laid down in the rule are mandatory. If the mandatory provisions of Order 21 Rule 54 CPC are not complied with, there is no attachment that prevents the parties from dealing with the property. The essence of an order of attachment is to preclude the judgment debtor from transferring his property. Until such prohibition is publicized in the manner provided in the rule, it cannot be said to have come into operation. In order to create a valid attachment, those formalities must be complied with. The purpose of the rule is to make the judgment debtor aware that the attachment has been effected and that he should not transfer the property thereafter. Where this purpose is satisfied by an undertaking by the judgment debtor not to alienate the property and had been made part of the decree, an omission to serve a formal order does not vitiate the attachment. Therefore, the formalities, which should be complied with for a valid attachment, are as under:
30
i) An order under sub Rule 1 of Rule 54, ordering attachment of an immovable property is to be made prohibiting the judgment debtor from transferring or charging the property in anyway and all persons from taking any benefit from such transfer or charge.
ii) The order shall also require the judgment debtor to attend the Court on a specified date to take notice of the date to be fixed for settling the terms of proclamation of sale.
iii) The order shall be proclaimed at the schedule property or adjacent to the schedule property by beat of drum or other customary mode.
iv) A copy of the order shall be affixed on a conspicuous part of the property attached.31
v) A copy of the order shall be affixed on a conspicuous part of the Courthouse i.e., in the court notice board.
vi) A copy of the order shall be affixed in a conspicuous part of the Office in the Collector of the District, in which the land is situated i.e., in the notice board of the said Office.
vii) If the schedule property is situated in the village, then a copy of the order shall be affixed on a conspicuous part of the Gram Panchayat having jurisdiction over that village i.e., in the notice board of the Gram Panchayat.
31. Where there is evidence to show that the property was duly attached, in the absence of any evidence to the contrary, it may be presumed that all necessary formalities are complied with. A presumption under Section 114 of the Evidence Act will come to the aid of the party, if 32 the party proves the fact that the judicial or official act has been in effect is done or performed. All that the rule enjoins is that the prohibitory order shall be proclaimed and affixed. Therefore, it is wrong to say that an attachment is not complete until service of the prohibitory order on the owner of the property i.e., the judgment debtor. A copy of the Courts' prohibitory order must be affixed to a conspicuous part of the Courthouse in very case and in the Office of the Collector of the district in which the land attached is situate and where the properties sought to be attached is situated in a village, in the Office of the Gram Panchayat having jurisdiction over that village. An alienation by the judgment debtor is open to attack under Section 64 only when it is established that there has been an order for attachment and that pursuant to that order, the attachment had been effected in the manner prescribed by the Court.
32. The learned counsel for the appellant has relied on the judgment of the Madras High Court in the case of 33 SRI.KRISHNA CHIT FUNDS VS. R.S.PILLAI AND ANOTHER reported in 2000(2) CTC 524. which is followed by the learned Single Judge of this Court in MSA No.199/2011, disposed of on 26.07.2012 and the judgment of the Karnataka High Court in the case of THE INDIAN BANK, BANGALORE VS. M/S.BLAZE & CENTRAL (P) LTD., AND OTHERS reported in AIR 1986 Kar. 258, wherein it has been held that, unless the legal requirement prescribed under Order 21 Rule 54(2) is complied with, the attachment would not be valid and the private alienation made subsequent to the said attachment would not be rendered void. Absolutely there is no qualms about the said proposition of law. However, in those cases, firstly the judgment debtor had filed an application for setting aside sale on the ground of the same being vitiated because of material irregularities. The material irregularities pointed out was non compliance with the requirements of Order 21 Rule 54(2). It is in that context, it was held that the requirements stipulated under Order 21 Rule 54(2) is mandatory in nature 34 and non compliance of the same would render the attachment illegal and consequently, the private alienation made subsequent to such attachment is void. Therefore, those judgments are in conformity with what has been discussed above. In the instant case, not only there is an order of attachment, but the same is duly affixed on the property, proclaimed near the schedule property and the copy of the proclamation is published in the Courthouse as well as in the Office of the Deputy Commissioner. In that view of the matter, those judgments are of no assistance.
33. From the aforesaid discussion, it is clear that not only an order of attachment is to be passed by the Court, but in pursuance of the said order of attachment, proclamation of attachment is to be affixed on the schedule property and also the fact of having an order of attachment being passed is proclaimed at or near the schedule property by beat of drums or other customary modes. A copy of the said proclamation is to be published in the Courthouse in 35 the Office of the Collector and if the property is situated in a village, in the village panchayat office. Once these legal requirements are complied with, then the order of attachment is valid and Section 64 of the Civil Procedure Code is attracted rendering all private alienations made subsequent to the attachment void ab initio.
34. In the instant case, as set out above, the evidence on record discloses passing of an order of attachment, due publication of proclamation and affixture of the same at the schedule property. It was also proclaimed by beat of drums at the schedule property. The Mahazar written and submitted to the Court by the Bailiff shows that a copy of the proclamation was duly published in the Court notice board as well as in the notice board of the Deputy Commissioner. Therefore, all the legal requirements prescribed under Order 21 Rule 54 has been complied with. Therefore, the Courts below were justified in holding that the sale deed dated 18-08-1983 executed by the judgment 36 debtor, T. Mareppa in favour of the 1st defendant is void. Consequently, the sale deeds executed by the 1st defendant in favour of the defendants 2 and 3 on 16.4.1992 did not convey any title, as such, they have no manner of right, title or interest over the schedule property.
POINT NO.2:
35. It was contented by defendants 2 and 3 that, before purchase of the property, they made enquiries, obtained the revenue records and encumbrance certificate, but none of them disclosed the attachment in favour of the plaintiff. It is only after making such enquiry they purchased the property and therefore, they are bonafide purchasers for valuable consideration, without notice of the attachment. It is not in dispute that the defendants 2 and 3 purchased the property during the pendency of the present suit. The sale in favour of defendants-2 and 3 is hit by doctrine of lis pendens. Section 52 of 5he T.P. Act which incorporates this doctrine of lis pendens reads as under:-
37
"52. 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 proceedings 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 any 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 proceeding 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 38 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."
36. The principle on which the doctrine rests was spoken by Cranworth L.C. in the leading case of Bellamy v.Sabine ((1857) 44 ER 842 at p. 843) as:
"It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party.
Where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind required that the decision of the Court in the suit shall be binding, not only on the litigant parties, but also on those who derive title under them by 39 alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end.
5. The Privy Council had adopted the same principle in Faiyaz Husain Khan v. Munshi Frag Narain ((1907) 34 Ind App 102) where they lay stress on the necessity for final adjudication and observation that otherwise there would be no end to litigation and justice would be defeated.
6. Story in his work on Equity IIIrd Edition para 406 expounded the doctrine of lis pendens in the terms as follows;-
"Ordinarily, it is true that the judgment of a court binds only the parties and their privies in representations or estate. But he who purchases during the pendency of an action, is held bound by the judgment that may be against the person from whom he derives title. The litigating parties are exempted from taking any notice of the title so acquired; and such purchaser need not be made a party to the action. Where there is a real 40 and fair purchase without any notice, the rule may operate very hardly, But it is a rule founded upon a great public policy; for otherwise, alienations made during an action might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim pendente lite, nihil innovetur; the effect of which is not to annul the conveyance, but only to render it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them."
(emphasis supplied by us)
37. It is in this background, we have to decide whether there is any conflict between the doctrine of lis pendens enshrined in Section 52 of the Transfer of Property Act and the rule availing a subsequent transferee without notice contained in Section 19(b) of the Specific Relief Act, for either of these should prevail.
41
38. The Full Bench of the Allahabad High Court in the case of SMT RAM PEARY & OTHERS Vs. GAURI AND OTHERS reported in AIR 1978 ALLAHABAD 318 has held as under:
"7. In the light of these principles we have got to consider whether in the event of a conflict arising between the doctrine of lis pendens enshrined in S, 52 of the Transfer of Property Act and the rule availing a subsequent transferee without notice, contained in Section 19(b) of the Specific Relief Act either the one or the other should prevail. Ordinarily, it is true that the title acquired by the subsequent purchaser is good, the sale to him being not void. But he who pruchases during the pendency of the suit is bound by the decree, that may be made against the person from whom he derives title. The litigating parties are exempted from the necessity of taking any notice of a title so acquired (see Samarendra Nath Sinha v. Krishna Kumar Nag (AIR 1967 SC 1440)), As to the vendor and the prior contractor it is as if no such title existed. Section 52 places a complete embargo on the transfer of any right to immoveable property 42 pending suit, which is directly and specifically in question in such a litigation; it enacts that during the pendency of the suit in which any right to immoveable property is "directly and specifically in question, the property cannot be transferred or otherwise alienated by any party to the suit so as to affect the rights of any other party thereto under any decree."
Thus, in the present case it may be that the subsequent transferee was entirely, ignorant of any tight on the part of (SIC) contractor, and also of the pen-(SIC) of the suit filed against the vendor by such contractor, yet as the transfer was made to him by the vendor after the institution of the suit of the contractor and, while it was pending, the subsequent purchaser cannot set up against the contractor any right from which his vendor is excluded by the decree. The title of the subsequent purchaser is good against him on the ground of breach of covenant, but against the plaintiff contractor who seeks specific performance of the contract against the vendor, the subsequent transferee can be in no way 'better position than the vendor himself. It is well 43 settled that in a suit for specific performance of contract in respect of immoveable property a right to immoveable property is directly and 'specifically in question, (see Gauri Dutt Mahraj v. Sheikh Sukur Mohammad ,(75 Ind App 165) : (AIR 1MB PC 147)).
As Story has put it in the passage above quoted, the effect of the doctrine of lis pendens is not to annul the conveyance but only to render it subservient to the rights of the parties in the litigation. The conveyance in favour of the subsequent purchaser is treated as if "it never had any existence". The conveyance in favour of the subsequent purchaser thus yields to the adjudication of the rights obtained by the contractor, in the consequence of a decree obtained against the vendor in a suit for specific performance of the contract. In Durga Prasad v. Deep Chand (AIR 1954 SC 75) (supra) their Lordships were dealing with the form of the decree in a suit directing specific performance of contract between the vendor and the plaintiff and in that connection, with a view to convey to the plaintiff, without cancelling the subsequent sale, 44 they without enforcing the contract against the subsequent purchaser, directed him to join in the conveyance so as to pass on the title which resided in him to the plaintiff. It was not a case falling within the mischief of S, 52 of the T. P. Act.
In our opinion, therefore, when the doctrine of lis pendens renders a transfer made during the pendency of the suit subservient to the rights of the plaintiff seeking specific performance of a prior contract entered into by the vendor in his favour and when 'on account of the operation of the doctrine of lis pendens such conveyance is treated as if it had never any existence, the subsequent transferee, even though he had obtained the transfer without notice of the original contract, cannot set up against plaintiff-contractor any right; for it would defeat the rule of lis pendens which is founded upon public policy. And considered in that manner, Section 52 of the T. P. Act is not subject to S, 19(b) of the Specific Relief Act.
8. We may yet arrive to a similar conclusion in a different manner. "A judgment inter partes 45 raises an estoppel only against the parties to the proceeding in which it is given, and their privies, for example, those claiming or deriving title under them." (Halsbury's Laws of England, Third Edition, Volume 15, para 372). The transferee pendente lite would be treated as a representative in interest of the parties to the suit and the judgment which has been pronounced, in the absence of fraud and collusion, would have the effect of finally determining the rights of the parties and the cause of action which would sustain the suit in which the doctrine of lis pendens applied would be merged in the judgment duly pronounced in what may be described as the previously decided suit. The decision being res judicata would bind not only the parties thereto but also the transferees pendente lite from them.
In a case to which besides the vendor the subsequent transferee is also impleaded in the array of the defendants, the judgment is final and binding not only on the parties to the original contract but also the transferee pendents lite from vendor. The conveyance in favour of the 46 subsequent purchaser is treated as if it never had any existence. There would then be no lis or action, which would survive, enabling the subsequent purchaser to take the defence of bona fide transfer for value without notice of the original contract. Accordingly, we take the view that lis pendens affects the transferee pendente lite and Section 52 of the T. P. Act is not subject to Section 19(b) of the new Specific Relief Act. The conveyance in favour of the subsequent purchaser pending the suit brought by the plaintiff contractor for! specific performance of the contract between him and the vendor is taken "as if it had never any existence."
39. In the case of BALWINDERJIT KAUR Vs. FINANCIAL COMISSIONER (APPEALS), PUNJAB reported in AIR 1987 PUNJAB AND HARYANA 189, it is held as under:
"3. ... By now it is well laid down that in the case of a transfer which is hit by the doctrine of lis pendens under S. 52 of the Transfer of Property Act the question of good faith which is essential to be established before an equitable relief can be granted in favour of a subsequent 47 vendee under section 41 or S. 51 of the Transfer of Property Act is totally irrelevant (see Shanu Ram v. Basheshar Nath (1966) 68 Pun LR (D) 44):
In the face of this settled legal position, the plea raised on behalf of respondents 5 to 10 that they were bona fide purchasers without notice from Paramjit Singh and Jagjit Singh was obviously of no consequence. Respondents 5 to 10 having purchased the property from these two vendors during the pendency of the civil litigation against them are bound by the decree passed against them, i.e., the vendors and, in view of that, no question of title remained to be settled between the parties, i.e., the petitioner and the subsequent vendees."
40. Section 52 of the T.P. Act places a complete embargo on the transfer of any right to an immoveable property pending suit, which is directly and specifically in question in such a litigation. It enjoins that during the pendency of the suit in which any right to immoveable property is directly and specifically in question, the property 48 cannot be transferred or otherwise alienated by any party to the suit so as to affect the rights of any other party thereto under any decree. The conveyance in favour of the subsequent purchaser is treated as if "it never had any existence". The conveyance in favour of the subsequent purchaser thus yields to the adjudication of the rights obtained by the contracting party. Where a litigation is pending between plaintiff and a defendant as to the right to a particular estate, the necessities of mankind require that the decision of the Court in the suit shall be binding, not only on the litigating parties, but also on those who derive title through them by alienations made during the pendency of suit, whether such alienees had or not, the notice of pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end. It is a rule founded upon a great public policy. Otherwise, alienations made during an action might defeat its whole purpose, and there would be no end to litigation. Hence arises the maxim pendente lite, nihil innovetur; the effect of which is not to 49 annul the conveyance, but only to render it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them.
41. A judgment inter partes raises an estoppel only against the parties to the proceeding in which it is given, and their privies, for example, those claiming or deriving title under them. The transferee pendente lite would be treated as a representative in interest of the parties to the suit and the judgment which has been pronounced, in the absence of fraud and collusion, would have the effect of finally determining the rights of the parties and the cause of action which would sustain the suit in which the doctrine of lis pendens applied would be merged in the judgment duly pronounced in what may be described as the previously decided suit. The decision being res judicata would not only bind the parties thereto but also the transferees pendente lite from them. The title acquired by the subsequent purchaser 50 is good, the sale to him being not void. But he who purchases during the pendency of the suit is bound by the decree, that may be made against the person from whom he derives title. The litigating parties are exempted from the necessity of taking any notice of a title so acquired, as to the vendor and the prior contractor as if no such title existed.
42. It is settled law that a person who purchases the property, which is the subject matter of the litigation, from the defendant during the pendency of the proceedings cannot take up the plea of he being a bonafide purchaser. Such a plea is not available to him, the reason being the purchase made by him is subject to the result of the pending suit. It is only when the vendor, who is a party to the suit, succeeds in the suit, then it will enure to the benefit of the purchaser. If the vendor loses, then the purchasers have no independent right to defend their title on the ground of they being a bonafide purchasers. Therefore, I do not see any substance in the said contention.
51
43. For the aforesaid reasons, there is no merit in this second appeal. Accordingly, the regular second appeal is dismissed.
Parties to bear their own costs.
SD/-
JUDGE CKL/KSP/KMS/VNP