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Showing contexts for: section 52 lis pendens in Premchand vs Shahjahabanu on 31 January, 2011Matching Fragments
He submitted that during the pendency in any court any suit or proceeding, the property cannot be transferred or otherwise be dealt by any party to the suit or the proceedings so as to affect the right of the other party thereto.
6. Learned counsel Mr. Shah referred to and relied upon the judgment of the Hon'ble Apex Court reported in (1996) 5 SCC 539 in the case of Sarvinder Singh v. Dalip Singh and ors., and submitted that this very point with reference to the application of doctrine of lis pendens and sec. 52 of T.P. Act has been considered by the Hon'ble Apex Court and it has been observed in para 6 that "the defendants were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the court."
21. For the purpose of appreciating this aspect, a few facts which have been narrated hereinabove are required to be considered that there was an agreement to sell and subsequently the plaintiff, the present petitioner, filed a suit for specific performance of the agreement.
However, as the necessary permission for N.A. could not be obtained and the transaction could not be finalised for want of permission under the Tenancy Act which led to filing of the suit for specific performance. However, during the pendency of the litigation, the property in question came to be sold to the respondents. Therefore, the present revision application has been filed by the petitioner invoking the doctrine of lis pendens referred to in sec. 52 of the T.P. Act. At the same time, it is not in dispute that no notice has been published. The bone of contention, whether sec. 52 of the T.P. Act would apply and the doctrine of lis pendens would be applicable, is required to be considered.
Therefore, this judgment would not be construed as laying down any such proposition as canvassed by learned counsel Mr. Shah.
31. Similarly, the judgment in the case of Sarvinder Singh (supra), again referring to the aspect of lis pendens and alienation pending litigation whether it would be hit by the doctrine of lis pendens under sec. 52 of the T.P. Act was considered and the Hon'ble Apex Court has observed, which has been much emphasised by learned counsel Mr. Shah referring to sec. 52 of the T.P. Act that "the property could not have been transferred or dealt with in any way affecting the rights of the parties except with the order or authority of the Court." Admittedly, the order or authority has not been obtained for alienation of the property. Therefore, the moot question which is required to be considered is whether the transaction which has taken place would be hit by the doctrine of lis pendens or operation of sec. 52 of T.P. Act while considering the submissions made by the respondents about the bona fide purchaser having purchased without even knowledge about such litigation and admittedly when there is no such notice as required under the Registration Act having been published.
32. Therefore, even if the submission of learned counsel Mr. Shah is accepted to the extent that notice or registration of such notice about pendency of the litigation is not necessary and the doctrine of lis pendens under sec. 52 of T.P. Act would be applicable, still, it will have to be considered while deciding the submissions based on doctrine of lis pendens as to whether there is any absolute right or whether the courts have to consider the facts and the equities.
33. Thus, though the notification has not been brought on record, it implies that the Statement Amendments are applicable to the State of Gujarat and the transaction entered into after such amendments will require publication of notice of lis pendens and also registration under the Registration Act. Therefore, merely because the notification is not produced, the submission made by learned counsel Mr. Shah that it is not required cannot be readily be accepted in light of this judgment and the observations made therein. Admittedly, no notice of lis pendens as required under the provisions of the Amendment Act has been given. It is in these circumstances the submissions are required to be appreciated for deciding the rival claims.