Punjab-Haryana High Court
Subhash Panwar vs State Bank Of India And Others on 9 March, 2011
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
Civil Revision No.1506 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Revision No.1506 of 2010 (O&M)
Date of Decision: March 9, 2011
Subhash Panwar .....petitioner
v.
State Bank of India and others
....Respondents
CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.Sanjay Verma, Advocate
for the petitioner.
Mr.Mahesh Dheer, Advocate
for the respondent no.1.
.....
RAM CHAND GUPTA, J.
The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 9.11.2009 passed by learned Civil Judge, Senior Division, Jagadhri, vide which 3rd party objections filed by petitioners were dismissed.
I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned Executing Court.
Facts relevant for the decision of present revision petition are that respondent no.1-State Bank of India had filed a suit for recovery against respondents no.2 and 3, which was decreed in favour of respondent no.1 and against respondents no.2 and 3. The property in dispute was mortgaged by respondents no.2 and 3 with respondent no.1 as a security for repayment of loan, hence, prior charge was existing on the property in dispute of respondent -bank. After obtaining the decree against respondents no.2 and 3, respondent no.1-decree holder filed execution petition in which objections were filed by present petitioner.
The case of present petitioner is that plot in dispute was purchased by him for consideration from respondent no.3 vide Civil Revision No.1506 of 2010 (O&M) -2- registered sale-deed dated 26.9.2005 and accordingly mutation was also sanctioned in favour of petitioner and hence it is contended that property was illegally attached in the case as he is bona fide purchaser for consideration.
Objections have been contested by respondent no.1-decree holder on the plea that sale of mortgaged property during pendency of execution petition is having no effect on the rights of respondent-decree holder to recover the decretal amount by sale of mortgaged property and that the sale, if any, is hit by doctrine of lis pendens as per Section 52 of Transfer of Property Act, 1882. Objections of present petitioner were dismissed by learned Executing Court by observing as under:-
" After having heard the rival contention of the parties, I have perused the court file and it is observed that JD firm have taken a loan facility from decree-holder bank, but failed to return the loan amount and thus, a decree in the sum of `3,55,954/- was passed in favour of the bank against the defendants jointly and severally on 20.4.1996. JD has obtained the loan by mortgaging his plot including the plot in dispute. Since, JD did not repay the decretal amount, thus execution petition has been filed against the JD, but during this period, JD has sold away the mortgaged property on 26.9.2005 to the applicant/objector. So, it is clear that the plot in question was already mortgaged with the decree holder bank and JD has sold away the same in order to defeat the execution of the decree in question. So, in these circumstances, it cannot be said that applicant/objector is bona fide purchaser in any manner. The sale deed is hit by the rule of lis pendens as per the Section 52 of the Transfer of Property Act. Thus, finding the objection frivolous in nature, the same stand dismissed. The warrant of sale is ordered to be issued as per the schedule given below."
Facts of the case are not disputed. Property in dispute was mortgaged by respondents no.2 and 3 with respondent no.1-bank as a security for repayment of loan. As the loan was not repaid by respondents no.2 and 3 to respondent no.1-Bank, a suit for recovery was filed, which Civil Revision No.1506 of 2010 (O&M) -3- was decreed in favour of respondent no.1. Property in dispute is the property which was under mortgaged with respondent no.1-Bank and hence, respondents no.2 and 3 have no right to alienate the suit property. Execution petition was filed by respondent no.1-decree-holder against respondent nos.2 and 3 for realising the amount by sale of the mortgaged property. Present petitioner filed objections before the Executing Court by taking the plea that the property was purchased by him for consideration vide sale deed dated 26.9.2005, i.e., during pendency of the execution petition. Hence, it has been rightly held by learned Executing Court that said transfer during pendency of execution petition is having no effect on the rights of respondent-decree holder to get the decretal amount by the sale of mortgaged property as the sale is hit by doctrine of lis pendens. On this point law has been well settled by Hon'ble Apex Court in Usha Sinha v. Dina Ram and others, (2008) 7 Supreme Court Cases 144, wherein it was observed that a transferee from a judgment-debtor is presumed to be aware of the proceedings before a court of law and that object and scope of order 21 Rule 102 of the Code of Civil Procedure recognises the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 and that if unfair, inequitable or undeserved protection is afforded to a transferee pendente lite, a decree holder will never be able to realise the fruits of his decree. Relevant paragraph reads as under:-
"17. Rule 102 clarifies that Rules 98 and 100 of Order 21 of the Code do not apply to transferee pendente lite. That rule is relevant and material and may be quoted in extenso:
`102. Rules not applicable to transferee pendente lite.- Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.' Bare reading of the Rule makes it clear that it is based on justice, equity and good conscience. A transferee from a judgment debtor is presumed to be aware of the proceedings before a Court of law. He should be careful before he Civil Revision No.1506 of 2010 (O&M) -4- purchases the property which is the subject matter of litigation. It recognizes the doctrine of lis pendens recognized by Section 52 of the Transfer of Property Act, 1882. Rule 102 of Order 21 of the Code thus takes into account the ground reality and refuses to extend helping hand to purchasers of property in respect of which litigation is pending. If unfair, inequitable or undeserved protection is afforded to a transferee pendente lite, a decree holder will never be able to realize the fruits of his decree. Every time the decree holder seeks a direction from a Court to execute the decree, the judgment debtor or his transferee will transfer the property and the new transferee will offer resistance or cause obstruction. To avoid such a situation, the rule has been enacted."
Hence, in view of the aforesaid legal proposition as held by Hon'ble Apex Court and in view of the facts of present case, I am of the view that no illegality or material irregularity has been committed by learned Executing Court in dismissing the objections filed by present petitioner and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.
Hence, the present revision petition is, hereby, dismissed being devoid of any merit.
9.3.2011 (Ram Chand Gupta) meenu Judge
Note: Whether to be referred to Reporter ? Yes/No.