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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Harkesh Manuja, J.
Palwinder Singh – Appellant
Versus
Sandeep Kaur – Respondent
CR-2377-2020
Decided On : 15-12-2022
Specific Performance - Agreement to Sell - Transfer of Property Act, 1882, Section 52; Specific Relief Act, 1963, Section 19 - The court discussed the validity of the agreement to sell, subsequent alienation of the property, and the rights of the subsequent purchaser under Section 19(b) of the 1963 Act. It highlighted the principles of lis pendens and the obligations of the vendor and purchaser in such cases.
Fact of the Case:
The petitioner filed a suit for possession based on an agreement to sell. The property was subsequently sold to a third party, leading to the dismissal of the execution application. The petitioner challenged this decision.
Finding of the Court:
The court found that the subsequent sale did not affect the petitioner's rights under the decree. It emphasized the obligations of the respondent as per the agreement to sell and the principles of lis pendens.
Issues: Validity of subsequent property sale, application of lis pendens, and rights of the subsequent purchaser under Section 19(b) of the 1963 Act.
Ratio Decidendi: The subsequent sale did not bind the petitioner's rights under the decree, and the respondent had no right to alienate the property to a third party. The executing court exceeded its jurisdiction by rendering the execution proceedings infructuous without considering the rights of the subsequent purchaser under Section 19(b) of the 1963 Act.
Final Decision: The revision petition was allowed, and the impugned order was set aside, directing the Executing Court to proceed with the execution proceedings based on the judgment and decree passed in favor of the petitioner.
JUDGMENT
Harkesh Manuja, J. - By way of present revision petition, challenge has been made to an order dated 21.01.2020 (Annexure P-4) passed by the Executing Court, whereby the execution application filed at the instance of petitionerplaintiff (decree-holder) was dismissed.
2. Based on an agreement to sell dated 12.07.2012, pertaining to the suit property, the petitioner-plaintiff filed a suit for possession by way of specific performance. The said suit was filed on 31.05.2013 and was decreed on 17.04.2018, followed by filing of an exection application by the petitioner-plaintiff on 08.06.2018. While execution proceedings were going on, the Sub-Registrar of the concerned area submitted his report before the Executing Court to the effect that the land in question already stood transferred in favour of one Ranjit Kaur wife of Malkeet Singh, vide sale deed dated 20.12.2012, executed at the instance of respondent-judgment debtor. Based on the said report dated 26.11.2019, the Executing Court vide order dated 21.01.2020, dismissed the execution application by recording that the same was rendered infructuous. It is the aforesaid order dated 21.01.2020, which has been impugned herein by way of present revision petition.
3. Learned counsel for the petitioner submits that the sale of suit property after execution of the agreement to sell dated 12.07.2012 by respondent/judgment debtor in favour of petitioner/plaintiff (decree-holder) would not even bind or affect the rights of the petitioner under the decree passed in his favour. He further submits that the learned Executing Court committed an error of law while dismissing the execution application, merely, on the ground that the property in question already stood sold prior to filing of the suit in favour of a third party vide sale deed dated 20.12.2012.
4. Notice of motion in the present revision petition was issued vide order dated 19.09.2022.
Though, office report shows that dasti notice issued to respondent not received back served or otherwise, however, the dasti summons along with service report dated 13.12.2022 have been produced in the Court today by learned counsel for the petitioner, which are taken on record, to record that the respondent stands served. However, no one appears on her behalf.
5. I have heard learned counsel for the petitioner as well as gone through the record, I find substance in the submissions made on behalf of the petitioner.
6. Once, by virtue of judgment and decree dated 17.04.2018, it was proved on record that the agreement to sell dated 12.07.2012 was validly executed between the petitioner and respondent as regards the property in question, any subsequent alienation/sale deed of the same at the instance of respondent was always governed and regulated by the rights confered upon the petitioner-plaintiff under the agreement to sell dated 12.07.2012 as regards its enforcement as per law. The Executing Court failed to appreciate the fact that strictly speaking principles of lis pendens as provided under Section 52 of the Transfer of Property Act, 1882, may not even apply to the facts and circumstances of the present case, the respondent having sold the suit property in favour of third party even prior to filing of the suit. In fact, the respondent/defendant having entered into an agreement to sell dated 12.07.2012 with the petitioner, had no right to alienate the suit property to any third party. In the present case, suit was filed on 31.05.2013 and the same was decreed in favour of petitioner-plaintiff vide judgment and decree dated 17.04.2018 by recording him to be ready and willing to perform his part of agreement, which was never challenged at the instance of respondent/judgment debtor in any subsequent proceedings/appeal.
7. Still further, in the absence of objections having been filed at the instance of so called third party i.e. the purchaser from the respondent/judgment debtor, even having purchased the suit property, prior to the filing of present suit
AI
The subsequent sale of the property did not affect the rights of the decree-holder, and the executing court must consider the rights of subsequent purchasers under Section 19(b) of the 1963 Act.
The principle of lis pendens applies to sales during the pendency of a suit, with subsequent purchasers acquiring the same rights and liabilities as the original defendant.
The court ruled that specific performance cannot be granted if the plaintiff's own pleadings assert that the defendant lacks rights to the property, rendering the claim inequitable.
The executing court is required to execute the decree as it is and cannot go beyond the decree. Any alienation made during the pendency of the litigation is hit by the principle of lis pendens.
The main legal point established in the judgment is that the relief of possession can be granted without being specifically claimed in a suit for specific performance, as per Section 22(2) of the Spe....
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