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2007 Supreme(All) 2487
[2007(9) ADJ 219]
ALLAHABAD HIGH COURT
BEFORE : TARUN AGARWALA, J.
Smt. VIDYAWATI .........Appellant
Versus
LALA RAM AND OTHERS .........Respondents
(Second Appeal No. 217 of 1983, decided on 28th September, 2007)
Counsel :
Manoj Misra for the Appellant; R.P. Misra and B.B. Paul for the Respondents.
Headnote:Code of Civil Procedure, 1908—Section 47 and Order XXI, Rule 92—Transfer of Property Act, 1882—Section 52—Cancellation of sale-deed—Suit filed by plaintiff for—On ground alleged by plaintiff that she was bona fide purchaser for value—Suit dismissed by trial Court holding that plaintiff was not bona fide purchaser—And that her suit was not maintainable—And that it was barred under Order XXI, Rule 92—Appeal against—Dismissed by appellate Court—Held, in view of attachment of property, and in view of Section 64 of C.P.C. sale-deed executed by defendant 2 in favour of plaintiff was void, illegal and inoperative—In view of specific finding given by trial Court namely, sale-deed were executed without payment of any consideration, suit was filed malafidely by plaintiff in order to defraud decree-holder defendant 1—Hence, trial Court was justified in dismissing suit—And thus plaintiff was not a bona fide purchaser for value—Therefore, second appeal was liable to be dismissed. [Paras 16, 24, 26 and 27]
Key Points: - The court held that due to attachment and Section 64 CPC, the sale-deed in favor of the plaintiff was void, illegal and inoperative. (!) (!) - The court found that the plaintiff was not a bonafide purchaser for value and that the suit was filed malafidely to defraud the decree-holder; hence the suit was dismissed. (!) (!) - The court held that the plaintiff, not being a party to the original suit or execution, could not file an objection under Section 47 CPC, and Rule 89 was not applicable; thus the suit was not barred by Order 21 Rule 92 CPC and was maintainable in the surrounding context, but ultimately dismissed on merits. (!) (!) (!) (!)
What is the status of the sale-deed in view of attachment and Section 64 CPC?
What is the court’s finding on whether the plaintiff was a bonafide purchaser for value?
What is the court’s ruling on whether the suit was maintainable under Order 21 Rule 92 and Section 47 CPC?
Hon’ble Tarun Agarwala, J.—The plaintiff Smt. Vidyawati filed a suit against Lala Ram and Chotey Lal for the cancellation of the sale-deed executed in favour of Lala Ram in execution case No. 3 of 1976 arising out of original suit No. 57 of 1972 with regard to plot No. 218 having an area of 8.14 acres. The ground alleged by the plaintiff was that she was a bonafide purchaser for value which she had purchased from defendant No. 2, Chotey Lal on the basis of three sale-deeds dated 31.10.1975, 20.4.1976 and 23.2.1977 and that her name was mutated in the revenue records. The plaintiff alleged that the defendant had knowledge about the execution of the sale-deeds in her favour inspite of which he had concealed this fact and, in collusion with the defendant No. 2, fraudulently got the sale-deed executed in execution proceedings. The plaintiff alleged that upon coming to know of the sale made by the defendants in execution proceedings, she had filed the present suit for the cancellation of the sale-deed. The plaintiff further contended that at the time when the decree was put in execution, the defendant No. 2 was no longer the owner and consequently the property could not be attached. Further, the defendant No. 1, being a decree holder could not participate in the auction proceedings without the permission of the Court.
2. The suit was resisted by defendant No. 1 who contended that the trial Court had no jurisdiction to decide the suit since the plot was bhumidhari and therefore, only the revenue Court had the jurisdiction to decide the matter. The defendant further submitted that plot No. 218 was under attachment in Execution Case No. 23 of 1974 and again in Execution Case No. 3 of 1976 and, during the pendency of the attachment, the defendant No. 2 had illegally sold the property by means of three sale-deeds in favour of the plaintiff which were void under Section 64 of the C.P.C. The defendant No. 1 submitted that Original Suit No. 57 of 1972 was filed against defendant No. 2 for the recovery of money which was decreed. The said decree was put in execution and in execution case No. 23 of 1974, the plot No. 218 measuring 10.53 acres was attached. During the attachment proceedings, the defendant No. 2 sold a portion of the property to the plaintiff by means of a sale-deed dated 31st October, 1975. The said execution case was dismissed on 15.11.1975 and subsequently, fresh execution case No. 3 of 1976 was instituted in which the property was again attached. In these proceedings, the defendant No. 2, namely, the judgment-debtor filed an objection under Section 47 of the C.P.C. and, during its pendency, the defendant No. 2 again executed two sale-deeds dated 2.4.1976 and 23.2.1977 in favour of the plaintiff which fact was concealed by defendant No. 2. The executing Court after considering the matter dismissed the objection of the judgment-debtor under Section 47 of the C.P.C. The plot was put in auction in which the defendant No. 1 became the highest bidder. The auction was confirmed by an order dated 27.7.1979 and the sale-deed was executed thereafter. The defendant contended that the sale-deeds executed in favour of the plaintiff was null and void and that she was not a bonafide purchaser and had knowledge of the execution proceedings inspite of which she did not file any objection under Order 21 Rule 89 or under Section 47 of the C.P.C. and therefore, the suit was barred by the provisions of Order 21 Rule 92 of the C.P.C. The defendant also contended that the suit was hit by the doctrine of lis pendens as provided under Section 52 of the Transfer of Property Act.
3. The trial Court, after framing the issues, dismissed the suit holding that the plaintiff was not a bonafide purchaser and that her suit was not maintainable and was barred by Order 21 Rule 92 of the C.P.C. and that the objections ought to have been filed either under Section 47 of the C.P.C. or under Order 21 Rule 89 of the C.P.C. Further, the suit was hit by the
