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Judges : K.T.SANKARAN
Padmaja - Appellant
Versus
Erattil Sajeev - Respondent
Case No : CRP.No.2163 of 2003 (A)
Decided On : 03/09/2005
Advocates Appeared :
For the Petitioner: V.V. Surendran, P.A. Harish, Advocates. For the Respondents: R1, C.M. Andrews, Advocate.
Civil Procedure Code, 1908 - O.XXI R. 97, 98, 99, 100, and 101 - Specific Relief Act 1963 - Sections. 19( 1) and 28( 1) -First respondent in this revision against respondents 2 and 3, for specific performance of an agreement for sale dated 30.5.1993, executed between the plaintiff and the first defendant. The second defendant was impleaded in the suit on the ground that he was a subsequent transferee - Whether a subsequent transferee of the property which was the subject matter of a suit for specific performance is entitled to invoke Ss.19(b), 22 or 28 of the Specific Relief Act; and (2) Whether a transferee against whom S.52 of the Transfer of Property Act applies is entitled to be heard in opposition to the execution of the document and delivery of possession in favour of the decree holder- Held, The right of a transferee pendente lite is subservient to the decree and he is bound by the decree passed in the suit against his transferor. The decree can be enforced even against the transferee without notice. The benefit that could be claimed by a subsequent transferee under S.19(b) of the Specific Relief Act would not be available to a transferee pendente lite. What is contemplated by S.19(b) is a transfer subsequent to the original contract and the transferee being a bona fide purchaser without notice of the original contract. S.19(b) does not apply in a case where a suit is filed before the transfer in favour of the subsequent transferee - The terms of S.52 are clear and imperative. It cannot be said that a purchaser without notice of earlier agreement would not be affected by the mandate of S.52. In this context, it is relevant to note that S.100 of the Transfer of Property Act recognizes the rights of any person who acquires the property for consideration and without notice of the charge. The charge under S.100 could be created by act of parties or by operation of law. S.52, on the other hand, can have operation during the pendency of a litigation - Once such an obstruction is on the record of the Executing Court it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under O.XXI, R.99, CPC and pray for restoration of possession - all the provisions of O. XXI R. 97 to 101 would apply to a proceeding in a suit for specific performance as well, though such application is not filed in an execution petition but is filed in the proceedings under S.28(3) of the Specific Relief Act. The nomenclature is quite irrelevant; whether it is an execution petition or proceeding in an original suit is not the relevant criterion. The application filed by the petitioner before the court below is maintainable for being considered on the merits - A title which is hit by S.52 of the Transfer of Property Act could not be projected as a valid title to deny the fruits of a decree in favour of the decree holder. The question whether a subsequent transferee is having possession of the properly or whether he paid proper consideration to his transferor or whether he was aware of the litigation is not at all material or relevant for consideration - Civil Revision Petition fails and it is dismissed -
The questions of law arising for consideration in this revision are: (1) Whether a subsequent transferee of the property which was the subject matter of a suit for specific performance is entitled to invoke Sections 19(b), 22 or 28 of the Specific Relief Act; and (2) Whether a transferee against whom Section 52 of the Transfer of Property Act applies is entitled to be heard in opposition to the execution of the document and delivery of possession in favour of the decree holder.
2. The suit, O.S.No.774 of 1993, on the file of the Court of the Subordinate Judge of Kozhikode was filed by the first respondent in this revision against respondents 2 and 3, for specific performance of an agreement for sale dated 30.5.1993, executed between the plaintiff and the first defendant. The second defendant was impleaded in the suit on the ground that he was a subsequent transferee. The suit was filed on 16.11.1993. Since the first defendant contended that he had transferred the property to the second defendant, he was impleaded as per order in I.A.No.2147 of 1994 dated 21.3.1985. The second defendant contended in the written statement that he assigned the property to third parties.
3. The trial court passed a decree on 12.4.1996 for return of the advance amount and damages. The prayer for specific performance of the contract to transfer the property in favour of the plaintiff was declined by the trial court. The plaintiff filed A.S.No.276 of 1997 before this Court challenging the judgment and decree of the trial court. This Court set aside the judgment and decree of the trial court and passed a decree for specific performance of the agreement for sale. This Court directed the plaintiff to deposit the purchase price within a period of two months. The amount was not deposited within time. C.M.P.No.2726 of 2002 was filed by the plaintiff/decree holder for extension of the period for deposit of the purchase price. This Court allowed the prayer and time was extended by two weeks from the date of passing of the order dated 16.10.2002. On the basis of that order, the decree holder deposited the consideration for the transaction before the trial court on 28.10.2002.
4. Thereafter, the revision petitioner, who was not a party to the suit, filed I.A.No.4857 of 2002 before the trial court under Sections 22 and 28 of the Specific Relief Act. The prayer made in that application was for a declaration that the revision petitioner is a bona fide purchaser, that the judgment and decree are not binding on her and that the plaintiff/decree holder is not entitled to get the document of title executed in his favour in respect of the plaint schedule property. In that application, the revision petitioner stated that she came to know of the decree only on 16.11.2002.
5. The trial Court dismissed the application by the order impugned in this revision holding that the revision petitioner is a transferee pendente lite and that her remedy, if any, is only to file a separate suit and not to file an application as she did in the case on hand. The trial court held that Sections 22 and 28 of the Specific Relief Act are not applicable to the case. It is to be noted that though the revision petitioner invoked the benefit of Section 19(b) of the Specific Relief Act before this Court, the application filed before the trial court was not under that Section.
6. As submitted by the counsel on either side, certain facts are not in dispute. The agreement executed between the plaintiff and the first defendant is dated 30.5.1993. The suit was filed on 16.11.1993 and it was decreed on 12.4.1996. During the pendency of the suit, the first defendant sold the plaint schedule property to the second defendant as per the assignment deed dated 18.11.1993. The second defendant in turn, sold the property to one Jayaraman as per document dated 19.7.1994. Jayaraman sold the property to Balaraman as per document dated 13.6.1995. After the passing of the decree. Balaraman sold the property
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