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IN THE HIGH COURT OF KERALA AT ERNAKULAM
SATHISH NINAN, J.
Annie M. Mathew – Appellant
Versus
M.K. Thomas (Deceased) S/O. Halley Mathew – Respondents
Ex.FA.No. 31 of 2016
Decided on : 12-06-2019
Statement of facts:
A decree for money, charged on immovable property is under execution- The suit was one filed by the vendor for recovery of balance sale consideration charged on the property- The suit was filed on 06.11.2007- The suit was decreed on 30.06.2010 allowing the plaintiff to realise the decree debt charged on the property- Claim petition filed under order XXI Rule 58 of the code of Civil Procedure was dismissed by the execution court. The claimant is in appeal.
Finding of the court:
The plea is barred by the principles of res judicata- so also it is to be noticed that though the appellant claims to be a lessee under the said Byju M. Mathew, there is no evidence in the said regard- The lease claimed is for five years which has to be by a registered document- In the absence of proof of the lease the claim is only to be rejected-In the suit, there was an interim attachment over the property. Exts.A2 and Al transfers are after the attachment-The transfer effected thereunder are hit by section 64 of the code of civil Procedure and is void.
Result: Dismissed.
Based on the provided legal document, the key points are as follows:
A suit for maintenance that includes a prayer for creating a charge on immovable property is considered a suit where the right to immovable property is directly and specifically in question. Consequently, the principle of lis pendens under section 52 of the Transfer of Property Act applies from the date of presentation of the plaint (!) .
Section 52 of the Transfer of Property Act applies to suits where a charge over immovable property is claimed. Any dealing with the property pending such a suit will be subject to lis pendens unless the suit is proven to be collusive (!) .
In the context of execution proceedings involving a decree for money charged on immovable property, subsequent transactions such as sales or transfers after the suit's filing date are affected by lis pendens and may be deemed void if they occur during the pendency of the suit (!) [15000474740001].
The validity of transfers or dealings with the property after the filing of a suit claiming a charge is generally barred by lis pendens unless the transaction is bona fide and for value without notice, and the transaction was completed after the suit's conclusion (!) (!) .
The section 52 of the Transfer of Property Act clearly states that during the pendency of a suit or proceeding in which an immovable property right is directly and specifically in question, the property cannot be transferred or dealt with in a manner that affects the rights of the parties under any decree or order, unless authorized by the court (!) .
The principles of res judicata prevent a party from re-litigating issues that have already been conclusively decided in a final order or judgment (!) .
Claims for a charge over immovable property are considered to directly involve rights to the property, and such claims are subject to the restrictions imposed by lis pendens during the pendency of the suit (!) .
The protection of bona fide purchasers for value without notice is subordinate to the lis pendens principle when transactions occur during the pendency of a suit involving a charge or right over immovable property (!) (!) .
The absence of proof of a lease or agreement, especially if the lease duration exceeds the statutory period and requires registration, results in the rejection of lease claims (!) .
The final decision affirms the dismissal of the claim petition, emphasizing that any transfer or dealing with the property during the pendency of the suit is invalid unless explicitly authorized by the court (!) .
Please let me know if you require further analysis or specific legal advice related to this document.
Claim petition filed under order XXI Rule 58 of the code of Civil Procedure was dismissed by the execution court. The claimant is in appeal.
2. A decree for money, charged on immovable property is under execution. The suit was one filed by the vendor for recovery of balance sale consideration charged on the property. The suit was filed on 06.11.2007. The suit was decreed on 30.06.2010 allowing the plaintiff to realise the decree debt charged on the property.
3. In the course of the execution proceedings, the appellant and one Byju M. Mathew filed claim petitions as EA 182/15 and EA 184/15 respectively under order XXI Rule 58 of CPC. The said Byju M. Mathew claimed to have purchased the property as per Ext. Al sale deed dated 08.11.2013. The appellant herein claimed to be a tenant under him.
4. Both the claim petitions were jointly considered by the execution court. It was held that, Ext. Al sale in favour of Byju M.Mathew is subsequent to the charged decree in favour of the plaintiff decree holder and is hit by lis pendens.
Accordingly dismissed.
5. Heard Sri. Liju v. Stephen, learned counsel for the both the claim petitions were appellant and, Sri.T.Krishnanunni (Sr.) and Sri.Philip T. Varghese, learned counsel for the respondents.
6. The learned counsel for the appellant contends that the impugned order is not sustainable for reasons more than one. Firstly though Ext. Al sale deed in favour of Byju M. Mathew is after the decree, his vendor got title over the property as per Ext.A2 sale deed dated 03.03.2008 which is prior to the date of passing of the charged decree. Hence the finding of the execution court that the transaction is hit by lis pendens is not correct. Secondly, a claim for charge is not a suit relating to immovable property and hence section 52 of the Transfer of Property Act is not attracted. He relies on a judgment of the Full Bench of the High court of oudh in Abdul Ghaffar v. Ishtiaq Ali [AIR (30) 1943 oudh 354]. Finally it is contended that, at any rate, Sri Byju M. Mathew is a bona fide purchaser for value and without notice of the charge and hence the charge will not bind him. He relies on the proviso to section 100 of the Transfer of Property Act.
7. While the appellant is right in his submission that Ext. A2, the prior deed of Ext. Al sale deed was on 03.03.08 and prior to the decree, it is to be noticed that the suit was filed on 06.11.07. Therefore, even Ext. A2, is pending the suit. Hence the transaction is hit by lis pendens.
8. The contention of the appellant that in a suit claiming charge over the property the right to immovable property is not in question and hence does not fall within the sweep of section 52 of the Transfer of Property Act, hardly deserves consideration since the law is too well settled against him. Section 52 of the Transfer of Property Act reads thus:-
'52. Transfer of property pending suit relating thereto:
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 pr
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