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IN THE HIGH COURT OF JUDICATURE AT MADRAS
J. Nisha Banu, J.
P. Arumugam - Appellant
Versus
K. Nandheeswaran & Others – Respondents
C.M.S.A. Nos.7 to 9 of 2016 & C.M.P. Nos. 3518, 3613 & 3614 of 2016
Decided On : 13-07-2022
Doctrine of lis pendens - Execution of decree for specific performance - Order 21 Rule 58 CPC - Section 52 of the Transfer of Property Act - [PROPERTY DISPUTE] - [Order 21 Rule 58 CPC, Section 52 of the Transfer of Property Act] - The court discussed the application of doctrine of lis pendens, the execution of decree for specific performance, and the interpretation of Order 21 Rule 58 CPC and Section 52 of the Transfer of Property Act. The court found that the doctrine of lis pendens did not apply to the case, and the execution court had the power to decide the claim of a third party being a bona fide purchaser under Order 21 Rule 58 CPC. The court also emphasized the wide powers vested in the executing court to deal with all issues relating to such matters.
Fact of the Case:
The case involved a property dispute where the appellant, a decree holder in a suit for specific performance, sought possession of the property. The respondents, who were bonafide purchasers of the property, contested the appellant's claim.
Finding of the Court:
The court found that the doctrine of lis pendens did not apply to the case, and the execution court had the power to decide the claim of a third party being a bona fide purchaser under Order 21 Rule 58 CPC. The court also emphasized the wide powers vested in the executing court to deal with all issues relating to such matters.
Issues: The issues involved the application of doctrine of lis pendens, the execution of decree for specific performance, and the interpretation of Order 21 Rule 58 CPC and Section 52 of the Transfer of Property Act.
Ratio Decidendi: The court held that the doctrine of lis pendens did not apply to the case, and the execution court had the power to decide the claim of a third party being a bona fide purchaser under Order 21 Rule 58 CPC. The court also emphasized the wide powers vested in the executing court to deal with all issues relating to such matters.
Final Decision: The Civil Miscellaneous Second Appeals were dismissed, and no costs were awarded. The connected miscellaneous petitions were closed.
JUDGMENT :
(Prayer in CMSA.No.7 of 2016: Civil Miscellaneous Second Appeal filed against the fair and final order dated 31.10.2014 made in C.M.A. No. 10 of 2013 on the file of II Additional District Court, Salem confirming the fair and final order dated 09.10.2016 made in R.E.A.No.159 of 2005 in R.E.P.No.346 of 2004 in O.S. No. 359 of 1997 on the file of the Additional Sub Court, Salem.
CMSA.No.8 of 2016: Civil Miscellaneous Second Appeal filed against the fair and final order dated 31.10.2014 made in C.M.A. No. 11 of 2013 on the file of II Additional District Court, Salem confirming the fair and final order dated 09.10.2016 made in R.E.A.No.155 of 2005 in R.E.P.No.346 of 2004 in O.S. No. 359 of 1997 on the file of the Additional Sub Court, Salem.
CMSA.No.9 of 2016: Civil Miscellaneous Second Appeal filed against the fair and final order dated 31.10.2014 made in C.M.A. No. 12 of 2013 on the file of II Additional District Court, Salem confirming the fair and final order dated 09.10.2016 made in R.E.A.No.151 of 2005 in R.E.P.No.346 of 2004 in O.S. No. 359 of 1997 on the file of the Additional Sub Court, Salem.)
1. Challenging the fair and final order dated 31.10.2014 made in C.M.A.Nos.10 to 12 of 2013 on the file of the II Additional District Court, Salem, confirming the fair and final order dated 09.10.2006 made in REA.Nos.159, 155 & 151 of 2005 respectively in REP.No.346 of 2004 in O.S.No.359 of 1997 on the file of the Additional Sub Court, Salem, the appellant/appellant/1st respondent has filed the present Civil Miscellaneous Second Appeals.
2. The appellant herein is the plaintiff/decree holder in the suit. The respondents herein are the petitioners in the Execution Appeals viz., REA.Nos.159, 155 & 151 of 2005 respectively.
3. The case of the petitioners in the Execution Appeals/respondents herein is that originally, the suit property belongs to P.K. Madhavan, Thangamani, M. Suresh. They sold the same to Annapoorani by way of registered sale deed dated 07.07.1997. She executed a power deed dated 17.09.2001 in the name of S. Sivakumar to sell her properties. The said S.Sivakumar has entered into agreement of sale in favour of K.M. Raja. Since K.M. Raja was not able to purchase the suit property, he and S. Sivakumar executed three sale deeds, one in favour of Nandheeswaran/petitioner in REA.No.159/2005, in respect of the suit property bearing S.No.55/6B to an extent of 855 sq.ft. with building and the same was registered on 12.08.2002, for value of Rs.2,72,748/-, another in favour of S. Subramani/petitioner in REANo.155/2005 in respect of the suit property bearing S.No.55/6B to an extent of 855 sq.f.t vacant site and the same was registered on 17.09.2001 for value of Rs.85,500/- and the other in favour of K.Mahalingam/petitioner in REA.No.151/2005 in respect of the suit property bearing S.No.55/6B to an extent of 1290 sq.ft with building and the same was registered on 20.09.2002 for value of Rs.1,50,500/-. From the date of purchase, the petitioners are in possession and enjoyment of the suit property respectively. There is no encumbrance over the property at the time of purchase by the petitioners. It is seen that the 1st respondent has filed a Civil Suit in Sub-Court, Salem in O.S.No.359/1997 against the respondents 2 to 5 therein namely P.K. Madhavan, Thangamani, M.Suresh and Annapoorani and an exparte decree was passed on 27.09.2001 in favour of the 1st respondent viz., P. Arumugam. The petitioners are the bonafide purchasers and the title owners of the suit property in S.No.55/6B to an extent of 855 sq.ft vacant site, S.No.55/6B to an extent of 855 sq.ft. vacant site and in S.No.55/6B to an extent of 1290 sq.ft. with building respectively. Hence, the petitioners prayed for allowing the petition to declare that the 1st respondent therein/appellant herein is not entitled to bring the property mentioned in E.P. for possession and to raise the order dated 01.10.2004 against the above said properties.
4. The case of the 1st responden
AI
The court emphasized the wide powers vested in the executing court to deal with all issues relating to the execution of decrees, including the determination of the rights of third parties claiming to....
The doctrine of lis pendens under Section 52 of the Transfer of Property Act binds purchasers to the outcomes of ongoing litigation concerning the property, negating claims of bona fide purchase with....
Court exercising jurisdiction under Section 47 or under Order 21 of CPC must not issue notice on application of a third party claiming right in a mechanical manner.
Bonafide purchasers without notice of an original agreement can challenge a decree in a separate suit, as the Execution Court cannot adjudicate on the decree's collusiveness.
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.
(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 main legal point established in the judgment is the requirement for substantiating the agreement of sale and the sale consideration, as well as the importance of saleable interest in the property....
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