Orissa High Court
Radhashyam Routray vs Puranjan Mohapatra And Ors. on 23 June, 1986
Equivalent citations: AIR1987ORI142, AIR 1987 ORISSA 142, (1986) 2 ORISSA LR 155
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
JUDGMENT D.P. Mohapatra, J.
1. The core question that arises for consideration in this appeal is whether the transfer of the suit property in favour of the appellant is hit by the principle of lis pendens embodied in Section 52, T.P. Act. The relevant facts giving rise to the present appeal may be shortly stated thus :
The appellant filed Title Suit No. 78/2 of 1969/73 in the Court of the Second Munsif, Cuttack for declaration of his title over the disputed property and for declaration of his possession or in the alternative recovery of possession and for permanent injunction against the respondents 1 and 2. The suit property comprised of a total area of A. 0.59 decimals out of which A. 0.42 decimals were under plot No. 1151 and A. 0.17 decimals were under plot No. 1152. This property was allotted to the share of Banshidhar Mohapatra, respondent 3, in the suit for partition filed by him (T.S. No. 71 of 1960). In the said suit the final decree (Ext. 1) was passed on 17-10-1963. Thereafter, on 2-11-1964 Banshidar Mohapatra sold the property in favour of the appellant by a registered sale deed (Ext. 1) and delivered possession to him. It was the further case of the appellant that in Misc. Case No. 132 of 1964 filed for review of the final decree in Title Suit No. 71 of 1960 his vendor Banshidar Mohapatra entered into a compromise with other co-sharers whereunder A. 0.38 decimals from the southern side of plot No. 1151 was allotted to Parbati Bewa, mother of Banshidhar Mohapatra, and rest A. 0.46 decimals from the northern side was allotted to Karunakar Mohapatra. A. 0.17 decimals from plot No. 1152 also fell to the share of Karunakar. On 24-4-1965 Parbati Bewa gifted her share in plot No. 1151 in favour of Laxmipriya, wife of Banshidhar. On 25-10-1965 Parbati Bewa cancelled the said deed of gift and on the same day executed a sale deed in favour of respondents 1 and 2. Subsequently on 31-10-1967 respondents 1 and 2 (defendants 1 and 2) obtained another sale deed in respect of A. 0.38 decimals from plot No. 151 from Laxmipriya. On the basis of the aforementioned sale deeds respondents 1 and 2 created disturbance in the peaceful possession of the plaintiff-appellant. Hence the suit.
2. Respondents 1 and 2 (defendants 1 and 2) in their written statement refuted the claims of the plaintiff. Their case in short was that the partition suit (T.S. No. 71 of 1960) was finally disposed of by the compromise decree on 18-12-64 whereunder suit plot No. 1151 with a total area of A. 0.84 decimals was allotted to different parties including A. 0.38 decimals to Parbati Bewa. Accordingly Parbati Bewa became the absolute owner of the said property by virtue of the final decree in the suit. She sold the property on 25-10-65 for a consideration of Rs. 2500/- in favour of defendants 1 and 2 and Banshidar Mohapatra (defendant 3) signed as a witness in the sale deed. Since then these respondents have been in possession of the property purchased by them. Subsequently coming to know that the property was the subject-matter of the deed of gift by Parbati Bewa in favour of Laxmipriya which was not acted upon and possession was never delivered to Laxmipriya, by way of abundant caution the respondents obtained another registered sale deed on 2-11-67 from Laxmipriya for the aforementioned A. 0.38 decimals in plot No. 1151.
3. The trial Court on consideration of the respective cases of the parties decreed the suit holding that as per the final decree dt. 17-10-63 the appellant's vendor had title in the suit property on 2-11-64 when he sold the same to the appellant.
In appeal by respondents 1 and 2, the aforesaid decision of the trial Court was reversed by the lower appellate Court and the suit was dismissed mainly on the ground that the sale in favour of the appellant was hit by the principles of lis pendens and the appellant was bound by the compromise decree in Title Suit No. 71 of 1960.
4. As noticed earlier, the question for consideration is whether the lower appellate Court was right in holding that the principle of lis pendens applied to the sale in favour of the plaintiff-appellant on facts and in the circumstances of the case. The Court on interpretation of the provisions of Section 52 of the T.P. Act held that not only the said provision applied in terms to the case but even if it was held that the transaction was not hit by lis pendens the conclusion was inescapable that the purchaser, that is, the plaintiff-appellant, was bound by the compromise-final decree passed in the suit.
Before proceeding to consider the question, it will be helpful to quote Section 52 of the T.P. Act.
''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 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 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."
The position is well settled that the doctrine of lis pendens is intended to prevent one party to a suit making an assignment inconsistent with the rights which may be established in the suit and which might require a further party to be impleaded in order to make effectual the Court's decree. The broad purpose of the section is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The further accepted position is that the effect of Section 52 is not to wipe out a sale pendente lite altogether but to subordinate it to the rights based on the decree in the suit. It was contended on behalf of the appellant that a proceeding for review of the judgment and the decree cannot be said to be a continuation of the suit and therefore the principle of lis pendens has no application to the sale in favour of the appellant since on the date of the said sale admittedly there was a final decree whereunder Banshidhar was allotted the suit properties. Reliance was placed on the decision of the Allahabad High Court in the case of Sakal Singh v. Smt. Devi, AIR 1979 All 274 (FB). All that the decision lays down is that the admission of a review application only means that the Court is tentatively satisfied about the merits of the case, but still after hearing both the parties, the Court may again reaffirm its earlier judgment and reject the review application. It is only when the review application has been allowed that the second appeal or the suit is reopened and then it can be said that the judgment is put in jeopardy. There need be no dispute about this proposition for the purpose of the present case. The Court has not examined the question whether the doctrine of lis pendens would be attracted to a transaction between the date of judgment and disposal of the application for its review. In the present case, the admitted factual position is that Title Suit No. 71 of 1960 was disposed of on 17-10-63. The application for review of the judgment was filed and it was registered as Misc. Case No. 132 of 1964. In the Misc. Case Banshidhar Mohapatra (defendant No. 3) filed objection on 30-9-64 (vide Ext. F/2). Banshidhar sold the disputed properties to the plaintiff-appellant by Ext. 2 on 2-11-64. On 18-12-64 Misc. Case No. 132 of 1964 was allowed and the compromise decree was passed. Thus, it is clear that the application for review of the judgment and decree was pending by the date of the sale of the disputed properties to the plaintiff-appellant and the vendor Banshidhar Mohapatra was well aware of the pendency of the said case. On these facts, the lower appellate Court, held in my opinion rightly, that the purchaser, that is, the plaintiff-appellant, was bound by the decision in Misc. Case No. 132 of 1964 even if the provisions under Section 52 of the T.P. Act do not apply to the case stricto sensu. The decision of the Allahabad High Court noticed above therefore is not relevant for the question under consideration in the case and does not help the appellant.
The Supreme Court in the case of Samarendra Nath Sinha v. Krishna Kumar Nag, AIR 1967 SC 1440 discussed the principle of lis pendens in the following manner :
".......But under Section 52 which incorporates the doctrine of lis pendens, during the pendency of a suit in which any right to an immovable property is directly and specifically in question such a 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. Under the Explanation to that section the pendency of such a suit commences from the date of its institution and continues until it is disposed of by a final decree or order and complete satisfaction or discharge of such a decree or order has been obtained. The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhab Holder v. Manohur, (1888) 15 Ind App 97 (PC) where the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as Court sales but it is well established that the principle of lis pendens applies to such alienations. (See Nilkant v. Suresh Chandra, (1885) 12 Ind App 171 (PC) and Motilal v. Karrabuddin, (1897) 24 Ind App 170 (PC)). It follows that the respondents having purchased from the said Hazra while the appeal by the said Hazra against the said preliminary decree was pending in the High Court, the doctrine of lis pendens must apply to his purchase and as aforesaid he was bound by the result of that suit........."
Applying the aforesaid principles to the facts of the present case, the conclusion is inescapable that Title Suit No. 71 of 1960 had not been finally disposed of by the date of the sale of the suit property to the appellant by Banshidhar Mohapatra as provided under the Explanation to Section 52 of the T.P. Act. According to the said provisions, a suit or proceeding commences from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and continues 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. On 2-11-64 when the sale in question took place the period for challenging the judgment and decree in Title Suit No. 71 of 1960 had not elapsed. The period of execution of such decree had also not elapsed. Indeed, the application for review of the said judgment was pending. Therefore, the suit was rightly held to be not finally disposed of by that date and the principle of lis pendens embodied in Section 52, T.P. Act was attracted to the case and as consequence thereof the purchaser, that is, the plaintiff-appellant, was bound by the result of the proceeding in Misc. Case No. 132 of 1964. The view taken above gains support from the decision of the Madras High Court in the case of A. Kulandaivelu Pillai v. Sowbagyammal, AIR 1945 Mad 350 wherein it was held that even under Section 52 as it stood before the amendment of 1929 a suit did not end with the decree but only with the satisfaction of the decree or when its execution became barred by limitation and till then, so long as there was no collusion between the parties, the suit must be deemed to be pending and as actively being prosecuted. The Explanation to Section 52 was added in 1929 apparently to give sanction to this view as the correct one.
In the case of Gouri Dutta Maharaj v. Sukur Mohammad, AIR 1948 PC 147 the Privy Council held that the provisions of Section 52 of the T.P. Act apply to a compromise decree and such a decree cannot, by reason of its very nature, be expected invariably to reflect the precise relief claimed. To the same effect also is the decision of the Allahabad High Court in the case of Moti Chand v. British India Corporation Ltd., AIR 1932 All 210.
5. A further contention was raised on behalf of the appellant that on the facts and in the circumstances of this case it should be held that the proceeding for review of the judgment and decree in Title Suit No. 71 of 1960 was of a collusive nature and therefore the provisions of Section 52, T.P. Act, did not apply to the sale of the disputed properties during pendency of such a collusive proceeding. This contention though raised before the lower appellate Court was not entertained since it was not raised at the earliest instance before the trial Court and there was no issue framed on the point and no evidence was led by the parties to establish the allegation. The contention from the nature of it requires investigation into the facts. Therefore the lower appellate Court was right in not entertaining the qustion in the absence of necessary pleadings and issue on the point before the trial Court. In second appeal, I am afraid, I cannot entertain this contention without necessary basis and materials in support of it.
6. On the discussions aforesaid, the contentions raised on behalf of the appellant have to be rejected as devoid of merit and it has to be held that the lower appellate Court rightly concluded that the doctrine of lis pendens embodied in Section 52 of the T.P Act applied to the sale of the disputed properties by Banshidhar Mohapatra to the plaintiff-appellant under the registered sale deed dt. 2-11-64.
In the result, the second appeal is dismissed, but in the circumstances of the case without any order for cost of this appeal.