The principle of lis pendens and the priority of rights over a property based on the timing of legal proceedings and sale deeds.

Heard the learned counsel on either side.

2. This petition has been filed against the order passed in E.A.No.45 of 2015 in E.P.No.21 of 2006 in O.S.No.254 of 2002 dated 05.03.2015 on the file of the learned I Additional Subordinate Judge, Madurai and consequential direction to the 4th respondent to remove the endorsements in the encumbrance register.

3. The petitioner is a third party to the suit. The second respondent is the plaintiff. The third respondent is the defendant. The second respondent filed the suit against the third respondent for recovery of money on the basis of a mortgage decree. The second respondent got the decree in his favour. He filed E.P.No.21 of 2006 in O.S.No.254 of 2002. The first respondent is the auction purchaser.

4. The petitioner herein is the plaintiff and the third respondent herein is the first defendant in the suit in O.S.No.155 of 2004 before the learned II Additional Sub Judge, Madurai, the petitioner filed the suit seeking for a prayer of specific performance. The suit was decreed in favour of the revision petitioner and the revision petitioner filed an execution petition in E.P.No.166 of 2008 and the learned II additional Sub Judge, Madurai directed for execution of the sale deed on 05.08.2013. The sale deed was executed in favour of the revision petitioner on 14.08.2013.

5. On the side of the revision petitioner, it is stated that the revision petitioner was put in possession on 28.04.1999 itself as he has paid 99% of sale consideration as advance and that the second respondent herein has filed a suit in O.S.No.254 of 2002 before the learned I Additional Sub Judge, Madurai for recovery of money on an alleged mortgage against the third respondent herein and She has also filed an E.P.No.21 of 2006 for sale. Without taking note of the final decree passed in O.S.No.155 of 2004, a public auction was conducted on 03.11.2008. Without notice to the petitioner, auction was conducted on 03.11.2008 but sale certificate was not issued. The first respondent has filed E.A.No.45 of 2015 in E.P.No.21 of 2006 on 27.01.2015 impleading this petitioner as a party. The case was posted to 05.03.2015 for filing counter but the Court without taking into consideration that already a sale deed in respect of the very same property was executed on 14.08.2013 has issued an impugned sale certificate on 05.03.2015 and has directed the fourth respondent to make necessary enteries.

6. On the side of the petitioner, it is stated that the impugned order dated 05.03.2015 is subsequent to the sale executed by the Court in respect of the same property in E.P.No.166 of 2008. On the side of the revision petitioner, it is stated that even before issuance of the sale certificate in favour of the first respondent, the petitioner has obtained a sale certificate on 14.08.2013. It is stated that the suit of the second respondent is only based on a mortgage and the suit is only for money whereas the claim of the petitioner is for specific performance which is for the particular property. Even in the year 1999 itself, the revision petitioner was put in to possession of the property by the third respondent as the revision petitioner has paid almost 99 % of the sale consideration as advance and that the third respondent has not filed any appeal against the petitioners case in O.S.No.155 of 2004 and that the respondents' right of money is not larger than the specific the right of the revision petitioner.

7. The learned counsel appearing for the petitioner relied on the Judgment passed by the Hon'ble Supreme Court in the case of Guruswamy Nadar v. P.Lakshmi Ammal by L.R.s and Ors., reported in AIR 2008 SUPREME COURT 2560, which reads as follows:

“Effect of, on subsequent sale of same property by owner to second purchaser-Second sale was effected after filing of suit for specific performance by first vendee-Principle of lis pendens will apply notwithstanding fact that right of subsequent purchaser could be protected under Section 19(b).”

8.