A property transfer during the pendency of litigation is nullified under Section 52 of the Transfer of Property Act, while applications beyond the limitation period are not permissible.

JUDGMENT

Order passed by the Principal Sub Judge, Palakkad dismissing E.A. No.715 of 2015 filed under Order XXI Rule 97 of the Code of Civil Procedure (for short 'CPC') is assailed by the petitioner in the proceedings on hand.

2. As averred by the petitioner the plaint schedule property was purchased by her in the year 1997 and ever since then was in possession of it. Income generated from the said property is utilised by her for her sustenance. To her utter dismay, on 08.12.2015, the 1st respondent along with five others trespassed into the property and attempted to fill a portion of it. She obstructed them from doing so and preferred a suit for injunction before the Munsiff Court.

3. It was realised later that the 1st respondent is an auction purchaser of the plaint schedule property through Court auction. Plaint schedule property was purchased by the petitioner on 04.01.1997 through sale deed bearing No.38/97 of SRO Kollengodu. The purchase of the property by the 1st respondent was at a later point of time.

4. According to the 1st respondent the delivery of the property was effected much earlier and therefore, the contention of the petitioner that she came to know about it only on 08.12.2015 is totally devoid of basis. According to her, the filing of the application under Order XXI Rule 97 is only the outcome of the collusion among the petitioner and the 2nd respondent.

5. Parties did not adduce any evidence before the execution court to establish their pleadings as above. The court below found on evaluation of the pleadings that the petitioner failed in its venture to establish his claim. Accordingly the petition was dismissed.

6. According to Sri.Binoy Vasudevan, the plaint schedule property was purchased by the petitioner on 04.01.1997 much earlier to the auction sale and therefore, the court below ought not to have held the petitioner as not a bonafide purchaser. According to him, the execution court failed to advert to the above factum while passing the impugned order dismissing the application filed by the petitioner.

7. It is pertinent to note from the materials of the case that the 1st respondent bid the plaint schedule property in an auction sale conducted by the Court on 02.11.2007 and the sale was confirmed in his favour on 04.01.2008. The 2nd respondent, the judgment debtor, also canvassed for upholding the title of the petitioner, being the holder of the title of the plaint schedule property much prior to the auction sale.

8. Suit in which the 1st respondent obtained a decree in his favour was filed in the year 1992. The suit was decreed on 22.11.1999. The property was admittedly purchased by the petitioner in the year 1997 and therefore it is convincingly clear that the property was conveyed to her by the Judgment Debtor/2nd respondent during pendency of the Suit. Therefore, the transfer in favour of the petitioner and without authority of the court is hit by lis pendens under Section 52 of the Transfer of Property Act, 1882 .

9. It is pertinent to note that the Amin, who had gone to the plaint schedule property to effect delivery of the property in favour of the 1st respondent, had reported to the Court that the delivery process was obstructed to by the petitioner. Therefore in the year 2009 itself the 1st respondent was constrained to file an application for removal of obstruction. Consequently the obstruction was removed and delivery of property was effected.

10. Moreover, the application seeking to set aside sale being filed after the period of limitation of 60 days prescribed under Article 127 of the Limitation Act is also barred. E.A. No.715/2015 being filed after seven years from the day on which the auction sale was confirmed in favour of the 1st respondent is barred by law and therefore is also not maintainable. The execution court has rightly dismissed the application by the impugned order. The order being a justifiable one, need no interference.

The appeal fails and is dismissed.