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2006 Supreme(Mad) 2854
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. RAJESWARAN
Chellappa - Appellant
Versus
J. Jagadeesa Chettiar & Others - Respondents
C.R.P.(NPD) No.1170 of 2003
Decided On : 26 October 2006
Sec.52 of the Transfer of Property Act will come into operation when a property is transferred pending a suit in which any right to immovable property is directly and specifically in question.
Headnote:
Transfer of Property Act - Lis Pendens - Sec.52
Fact of the Case:
The revision petitioner filed a petition against the order of the execution court allowing the discharge of attachment of a property. The petitioner claimed that the property was his, while the 1st respondent argued that it was purchased by him and the attachment should be discharged.
Finding of the Court:
The court found that the suit filed by the revision petitioner was a simple money suit and the right to the immovable property was not directly and specifically in question, therefore Sec.52 of the Transfer of Property Act did not apply.
Issues: The main issue was whether the sale executed by the respondents in favor of the 1st respondent when the suit was pending was hit by Sec.52 of the Transfer of Property Act.
Ratio Decidendi: The court held that Sec.52 of the Transfer of Property Act will come into operation when a property is transferred pending a suit in which any right to immovable property is directly and specifically in question.
Final Decision: The Civil Revision Petition was dismissed, and the C.M.P. was also dismissed.
(Revision Petition filed against the order dated 20.3.2003, passed in E.A.No.4843/1999 in E.P.No.60/1997 in O.S.No.2932/1994, on the file of the X Asst. City Civil Court, Chennai.)
This Revision Petition has been filed against the order dated Revision Petition filed against the order dated 20.3.2003, passed in E.A.No.4843/1999 in E.P.No.60/1997 in O.S.No.2932/1994, on the file of the X Asst. City Civil Court, Chennai.
2. The decree holder in O.S.No.2932/1994 is the revision petitioner. He is aggrieved by the order of the execution court in E.A.No.4843/1999 filed by the 1st respondent herein/3rd party.
3. E.A.No.4843/1999 was filed by the 1st respondent as third party under Order 21 Rule 58 C.P.C. praying to pass an order of discharge attachment of warrant issued against the property namely, house and ground bearing Door No.58-A, Venkatesabakthan Street, Perumalpet, Chennai. The execution court by order dated 20.3.2003 allowed the said application and aggrieved by the same, the above Civil Revision Petition has been filed under Sec.115 of C.P.C.
4. Heard the learned counsel for the petitioner. Though notice has been served on the respondents, there is no representation on their behalf. I have also gone through the documents filed in support of the submissions of the learned counsel for the petitioner.
5. The 1st respondent/3rd party in E.A.No.4843/1999 stated that the property bearing No.58-A, Venkatesabakthan Street, Perumalpet, Chennai mentioned in the E.P. Schedule by the revision petitioner herein is his absolute property having purchased the same on 11.5.1994 under the sale deed registered as document No.1279/1994 on the file of the Sub-Registrar, Purasawalkam from respondents 2 to 8 herein.
6. The revision petitioner filed E.P.No.60/1997 for attachment and sale of the property mentioned above mentioning that the property belonged to respondents 2 to 8 herein who are judgment debtors in E.P.No.60/1997.
7. According to the 1st respondent/3rd party that suppressing the fact that the property was purchased by him, the petitioner/decree holder obtained an order of attachment and therefore he filed E.A.No.4843/1999 for an order of discharge attachment of warrant issued against the property.
8. The revision petitioner/decree holder resisted the application by stating that the sale is collusive one and the sale made in favour of 1st respondent/3rd party is hit by doctrine of lis pendens contained in Sec.52 of the Transfer of Property Act.
9. The execution court held that Sec.52 of the Transfer of Property Act will not apply and therefore the decree holder has filed the above Civil Revision Petition challenging the order of execution court.
10. The only question that arises for consideration is whether the sale executed by respondents 2 to 8 herein in favour of the 1st respondent herein on 11.5.1994 when the suit is pending is hit by Sec.52 of the Transfer of Property Act.
11. Sec.52 of the Transfer of Property Act reads as under:
"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 proceedings 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 proceedings 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 purpose 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 d
