2013 Supreme(Bom) 793

High Court of Judicature at Bombay
R.C. CHAVAN, J.
Prakash Gobindram Ahuja
Versus
Ganesh Pandharinath Dhonde & Others
Appeal From Order No. 256 of 2013 & Civil Application No. 302 of 2013
Decided On : 08-04-2013

Section 52 of the Transfer of Property Act provides adequate protection to the parties from transfers pendente lite since such transferees are not required to be, or entitled as of right to be, impleaded as parties to the suit and cannot resist execution proceedings in view of provisions of Order XXI Rule 100 of the Code as amended by this Court.

Headnote:

Whether Section 52 of the Transfer of Property Act provides adequate protection to the parties from transfers pendente lite since such transferees are not required to be, or entitled as of right to be, impleaded as parties to the suit and cannot resist execution proceedings in view of provisions of Order XXI Rule 100 of the Code as amended by this Court ?

Fact of the Case:

The appellant, in Special Civil Suit No.104 of 2012 before the IInd Joint Civil Judge, Senior Division, Kalyan questions the order passed by him below Exhibit-5, rejecting his application to restrain defendant No.7 from creating third party interests in the suit property pending hearing of the suit.

Finding of the Court:

The Court held that Section 52 of the Transfer of Property Act provides adequate protection to the parties from transfers pendente lite since such transferees are not required to be, or entitled as of right to be, impleaded as parties to the suit and cannot resist execution proceedings in view of provisions of Order XXI Rule 100 of the Code as amended by this Court.

Issues: 1. Whether Section 52 of the Transfer of Property Act provides adequate protection to the parties from transfers pendente lite since such transferees are not required to be, or entitled as of right to be, impleaded as parties to the suit and cannot resist execution proceedings in view of provisions of Order XXI Rule 100 of the Code as amended by this Court ? 2. Would plaintiffs' registering notices of their suits under Section 18 of the Indian Registration Act (though such registration may not be compulsory) not secure for plaintiffs more than what an injunction could secure since transferees, who purchase property, pendente lite in spite of such registration would be deemed to have notice of pendency of the lis and could not claim to be transferees without notice ? And, would such registration not be preferable to clamping an injunction on adversary ? 3. Since a plaintiff seeking a temporary injunction is required to show that he would suffer irreparably if temporary injunction is not issued, would it be inappropriate to expect such plaintiff to show that the provisions of Section 52 of the Transfer of Property Act do not afford adequate protection before an injunction to restrain transfer pendente lite is issued ? 4. Would it be appropriate, in cases of claims for temporary injunction to restrain transfers pendente lite, to consider imposition of conditions short of granting injunction, which should protect the plaintiff's interest, like, seeking an undertaking that no equities would be claimed on account of sale or development of properties; effecting sales only after putting transferees to notice that their rights would be subject to the pending suit, or requiring the party to inform the Court promptly of creation of every such interest ? 5. Whether the observation in para (13) of the judgment in Vasant Tatoba Hargude and others v. Dikkaya Muttaya Pujari (AIR 1980 Bombay 341) that in the event of there being conflict, the decision of later Bench would bind only lays down that judgment later in point of time as explaining the earlier judgment would bind ?

Ratio Decidendi: The Court held that Section 52 of the Transfer of Property Act provides adequate protection to the parties from transfers pendente lite since such transferees are not required to be, or entitled as of right to be, impleaded as parties to the suit and cannot resist execution proceedings in view of provisions of Order XXI Rule 100 of the Code as amended by this Court.

Final Decision: The Court held that Section 52 of the Transfer of Property Act provides adequate protection to the parties from transfers pendente lite since such transferees are not required to be, or entitled as of right to be, impleaded as parties to the suit and cannot resist execution proceedings in view of provisions of Order XXI Rule 100 of the Code as amended by this Court.