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2020 Supreme(Online)(KER) 34385
HIGH COURT OF KERALA
S.V. BHATTI, BECHU KURIAN THOMAS, JJ
JUMAILATH BEEVI – Appellant
Versus
RAJEENA – Respondent
OP (FC)/218/2020
SRI.V.PHILIP MATHEW SRI.JEPH JOSEPH, SRI.J.JAYAKUMAR
Transferees pendente lite cannot resist dispossession as they are under constructive notice of the litigation, barring their claims under the principle of lis pendens.
Headnote:
Transferee - Property Dispossession - CPC Section List - The court analyzed the application of Order 21 Rule 99 and Rule 102 of the CPC, reaffirming that pendente lite transferees cannot resist dispossession or claim rights based on a purchase made during litigation, depending on the principle of lis pendens.
Fact of the Case:
Petitioners, transferees pendente lite, challenged the dismissal of their petition under Order 21 Rule 99 CPC after being dispossessed due to a successful court auction by the first respondent. The first respondent's claims were based on prior litigation involving the property.
Issues: Whether the petitioners, as transferees pendente lite, could claim rights or resist dispossession after the execution of a decree involving the property.
Ratio Decidendi: The court held that a transferee pendente lite cannot resist dispossession as they are legally presumed to be aware of ongoing litigation, thus their claims lack merit under Order 21 of the CPC.
Final Decision: The original petition is dismissed.
JUDGMENT
Dated this the 30th day of July, 2020 Bechu Kurian Thomas , J.
The scope of protection which a transferee pendente lite can seek from an executing court arises for consideration. The transferees pendente lite challenge the dismissal of their petition filed under Order 21 Rule 99 of the Code of Civil Procedure 1908 , (for brevity 'CPC').
2. Petitioners are transferees pendente lite. They had purchased 4.86 ares of property by Sale Deed No.1149/10 dated 8.7.2010 of the SRO Kadakkavur from respondents 3 and 4. Transferors of the petitioners are respondents 3 and 4, who had purchased the property from the 2nd respondent as per Sale Deed No.731/2008. According to the petitioners, it was only in 2015, that they came to know that the 1st respondent had secured sale certificate in E.P. No.23 of 2013, with respect to the scheduled property and even though, 1st respondent had legally ousted respondents 2 to 4, petitioners continued in physical possession and an application was filed as E.A. 100 of 2015 in E.P. No.23 of
2013 in O.P. No.1350 of 2008 under Order 21 Rule 99 CPC, to re- convey their rights and possession. However, by Ext. P8 order, the application was dismissed. This Original Petition is preferred against Ext.P8 order under Article 227 of the Constitution of India.
3. 1st respondent filed an objection contending that she was the wife of the 2nd respondent and that after their marriage fell into troubled waters, to defeat her marital claims, the 2nd respondent executed Sale Deed No.731/2008 in favour of respondents 3 and 4 who are his sister and brother-in-law. O.P. No.1350 of 2008 was instituted by the 1st respondent before the Family Court, Nedumangad for setting aside Sale Deed No.731/2008 and for recovery of gold ornaments and money. An attachment of the property covered by the aforesaid sale deed was also obtained in the suit for securing the monetary claim. The suit filed as O.P. No.1350 of 2008 was allowed on 25.7.2011 and the Sale Deed No.731/08 was set aside as per Ext. P5 Judgment. The 1st respondent was found entitled to realize the amounts claimed in the suit charged on plaint 'A' schedule property. According to the 1st respondent, though the respondents 2 to 4 attempted to get the decree set aside, the same was dismissed and thus the judgment in O.P. No.1350 of
2008 on the files of the Family Court, Nedumangad, had become final. The 1st respondent purchased the scheduled property through court auction on 15.10.2013 in execution of the decree in Ext.P5. The 1st respondent further avers that petitioners are alleged purchasers by sale deed No.1149/2010, and their purchase of the property was during the pendency of the litigation in O.P. No.1350 of 2008 on the files of the Family Court, Nedumangad and during the subsistence of an attachment issued in that case. It is further pleaded that the claim of petitioners is baseless not only due to the principle of lis pendens but also due to the setting aside of their prior title deed and the petitioners have not acquired any title to the property to file a petition under Order 21 Rule 99 CPC.
4. In the executing court, Exts. A1 to A3 were marked on the side of the petitioners while the 1st respondent marked Ext. B1 to Ext. B5. Ext. A1 is the sale Deed No. 1149/2010 while Ext. B2 is the Judgment in O.P No. 1350 of 2008 of the Family Court, Nedumangad, and Ext.B5 is the Sale certificate. After considering the facts and circumstances, the Family Court, Attingal by Ext.P8 order dismissed E.A 100 of 2015 in E.P. No.23 of 2013.
5. We have heard Sri.V.Philip Mathews, learned counsel for the petitioners as well as Sri.J.Jayakumar, learned counsel for the
1st respondent.
6. Adv. Sri. Philip Mathew, assailed the impugned order and contended that at the time of purchase of the property, petitioners were not aware about the pending litigation between respondents 1 to 4 and nor was there an order of attachment or any other encumbrance over the property. According to the counsel, the p
