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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
S. G. Mehare, J.
Manik S/o Motiram Dalwale Died Through L.Rs. - Appellant
Vs.
Suhas Vasantrao Jawadekar, Occ. Service, Bombay And Ors. - Respondent
Appeal From Order No. 55 Of 2011
Decided On : 04-11-2023
specific performance - Civil Appeal No. 57 of 2008 - Order XXI Rule 97, 101 of C.P.C. - Section 52 of the Transfer of Property Act - Maharashtra Amendment - Right, title and interest of respondent No.10 in the suit property - Summary determination of questions under Rule 101 of Order XXI of the C.P.C. - Preferring an appeal with delay condonation application is lis pendens - Registration of lis pendens notice under Section 18 of the Registration Act not mandatory - Respondent No.10 not a bona fide purchaser without knowledge of the suit - Respondent No.10 entered into the shoes of the Judgment debtor
Fact of the Case:
The plaintiff filed a suit for specific performance of the contract against the deceased vendor. The trial Court denied the specific performance but granted the alternate relief of refund of earnest money. The plaintiff appealed and the specific performance of the contract was granted. During the pendency of the suit, the suit premises were transferred multiple times. Respondent No.10 resisted the execution of the possession warrant claiming to be a bona fide transferee without notice. She filed multiple applications under different sections of the C.P.C. and came with a defence that the decree is hit by Section 52 of the Transfer of Property Act (Maharashtra amendment) because the lis pendens notice was not registered with the Office of Sub-registrar. The appeal was preferred to the first Appellate Court against the said orders.
Finding of the Court:
The Court found that the impugned Judgment and Order of the learned District Judge-2 Dhule was bad in law and perverse. The impugned Judgment and order of the learned District Judge Dhule passed in Civil Appeal No. 57 of 2008 dated 25.04.2008, stands quashed and set aside. The orders of the learned executing Court are restored. Respondent No.10 to bear the cost of the appellant.
Issues: The Court considered whether the summary determination of questions under Rule 101 of Order XXI of the C.P.C. should be determined summarily and not like a suit, whether preferring an appeal with delay condonation application is lis pendens, whether the registration of lis pendens notice under Section 18 of the Registration Act was mandatory, whether the title acquired by the predecessor in title of respondent no. 10 exempted the Transfer from Section 52 of the Transfer of Property Act, whether respondent No.10 was a bona fide purchaser without knowledge of the suit, and whether respondent no. 10 entered into the shoes of the Judgment debtor.
Ratio Decidendi: The Court held that the impugned Judgment and Order of the learned District Judge-2 Dhule was bad in law and perverse. The impugned Judgment and order of the learned District Judge Dhule passed in Civil Appeal No. 57 of 2008 dated 25.04.2008, stands quashed and set aside. The orders of the learned executing Court are restored. Respondent No.10 to bear the cost of the appellant.
Final Decision: The appeal is allowed. The impugned Judgment and order of the learned District Judge Dhule passed in Civil Appeal No. 57 of 2008 dated 25.04.2008, stands quashed and set aside. The orders of the learned executing Court are restored. Respondent No.10 to bear the cost of the appellant. The effect and operation of this order is stayed for six weeks from today.
JUDGMENT :
1. The original plaintiff/decree-holder has impugned the order of the learned District Judge-2 Dhule in Civil Appeal No. 57 of 2008 dated 16.10.2009.
2. The plaintiff had filed a suit for specific performance of the contract against the deceased vendor, Vasantrao Jawadkar. The trial Court denied the specific performance but granted the alternate relief of refund of earnest money. The plaintiff had preferred the appeal. The appeal was allowed, and the specific performance of the contract was granted. The Hon'ble Supreme Court confirmed the decree for specific performance.
3. During the pendency of the suit, the vendor, the original defendant, sold the suit premises to Rajaram Kadu Patil and Dharmraj R Patil on 27.11.1978. They inducted the tenants in the suit premises. The above vendors sold the suit premises to Nagraj Borse and his sons Ashok and Arjun in 1986 and 1988. Borse's family again sold the suit premises to Chandrakant Kele and Rajesh Khankari. On 30.11.1996, they transferred the suit premises to Kamalabai C Ajmera and Ashish R Ajmera. Kamlabai Ajmera and Ashish Ajmera gifted the suit premises to respondent No. 10 Smita Ajmera in 2003.
4. The plaintiffs had filed a Special Darkhast No. 34 of 1978. The transferee pendente lite, namely Rajaram Kadu Patil, Dharmaraj Rajaram Patil, Gulabsingh Bajiraosingh Raghuwanshi, Vijaysing Raghuwanshi and Nirmalkumar Suryawanshi were also impleaded as defendant Nos. 5 to 9.
5. The executing Court had issued the possession warrant. Respondent No.10 had resisted the execution of the possession warrant. She claimed that she was a bona fide transferee without notice. Thereafter, the decree-holder applied for police aid. Respondent No.10 Smita had filed an application under Order XXI Rule 97 of the Civil Procedure Code (for short, “C.P.C.” ) contending that she was the exclusive owner of the suit property, being the bona fide and lawful owner, for valuable consideration without notice is exclusive owner of the suit. She claimed the title based on a gift deed by Kamalabai Ajmera and Ashish Ajmera. She has been in possession since 30 November 1996. The application was rejected on merit, and a possession warrant was issued against her. She, on 11.04.2008, filed another application Exh. 79, under Section 47, 151 and Order XXI Rule 101 of C.P.C. and came with a defence that the decree is hit by Section 52 of the Transfer of Property Act (Maharashtra amendment) because the lis pendens notice was not registered with the Office of Sub-registrar. Hence, the decree became inexecutable. By order dated 11.04.2008, the executing Court rejected her application.
6. On 25.03.2008, she again filed an application Exh. 81, under sections 114 and 151 of the C.P.C. for review of the order passed below Exh. 65 and 70. On 11.04.2008, both applications were rejected.
7. The appeal was preferred to the first Appellate Court against the said orders.
8. Hearing the parties, the learned District Judge-2 Dhule allowed the appeal and set aside the order passed below Exh. 65 (for police aid) Exh.70 Under Order XXI Rule 101 of the C.P.C. Exh.79 (filed under Section 47 and 151) and under Order 21 Rule 101 of the C.P.C. and also allowed the review application Exh.81. The learned District Judge-2 Dhule remitted the matter back to the executing Court for deciding and adjudicating the right, title and interest of respondent No.10 in the suit property in accordance with the law and thereafter to proceed with the execution.
9. The learned Counsel for the appellant has vehemently argued that the first appellate Court failed to consider that respondent No. 10 cannot obstruct the possession warrant under the scheme of the relevant rules, requiring a decision concerning right, title and interest. The suit premises was transferred to her during the pendency of the suit. She had applied every tactic to protract the execution of the decree. She had come with a specific case that she acquired the title by way of a gift deed from her
The Court emphasized the importance of summary determination of questions under Rule 101 of Order XXI of the C.P.C. and the applicability of Section 52 of the Transfer of Property Act. It also clarif....
(1) Lis Pendens – Section 52 of T.P. Act has no application where transfer in favour of subsequent purchaser is not after filing of suit but before filing of suit for specific performance.(2) Resista....
The doctrine of lis pendens applies to subsequent purchasers; their rights are subordinate to those of the decree holder in a specific performance case.
A pendente lite purchaser cannot assert independent title in execution proceedings, as the doctrine of lis pendens prevails over claims of bona fide purchasers under the Specific Relief Act.
Relief under O.1 R.10 and O.6 R.17 of CPC are based on different cause and different contentions and combined application is not maintainable.
During pendency in any court having authority within limits of India of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in ques....
A subsequent purchaser cannot assert rights against a prior decree holder, as established by the doctrine of lis pendens under Section 52 of the Transfer of Property Act.
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