AND

DECREE

DATED

06.03.2018 PASSED IN RA NO.76/2017 ON THE FILE OF THE

PRL.SENIOR

CIVIL

JUDGE

AND

CJM.,

CHICKBALLAPUR

ALLOWING THE APPEAL AND SETTING ASIDE THE ORDER ON

IA IV DATED 13.04.2017 PASSED IN OS NO.473/2015 ON THE

FILE

OF

II

ADDL.CIVIL

JUDGE

AND

JMFC.,

CHICKBALLAPUR, ALLOWING THE ORDER ON IA IV FILED

UNDER ORDER 7 RULE 11[a]and [d] R/W SEC.151 OF CPC FOR

REJECTION OF PLAINT.

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

The appellants had filed a suit in O.S.No.143/2005 before

the jurisdictional Civil Court seeking for specific performance

of the 'Agreement of Sale' dated 07.06.1997 executed by

respondent Nos.2 to 7 in respect of the suit schedule

properties.

During the pendency of the suit, the respondents

No.2 to 7 conveyed the suit schedule property to the wife of

respondent No.1. The respondent No.1 after demise of his wife

filed an application under Order 1 Rule 10(2) of CPC to implead.

The application was rejected stating that the sale transaction is

hit by Section 52 of Transfer of Property Act.

The trial Court, after appreciating the evidence on

record, proceeded to decree the suit for specific performance

and directed the purchaser to join the respondent Nos.2 to 7

for executing the sale deed in favour of these appellants.

The appellants filed an execution petition in

No.58/2015 for execution of the sale deed in their favour. The

respondent No.1 filed OS No.473/2017 to declare that he is the

absolute owner of the subject property having purchased the

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same through a registered sale deed dated 4.1.2007 and for

permanent injunction.

The appellants filed an application under Order 7

Rule 11(d) read with Section 151 of CPC to reject the plaint.

The Trial Court allowed the application and rejected the plaint.

The respondent No.1 filed an appeal before the 1st Appellate

Court. The 1st Appellate Court set aside the order passed by

the Trial Court and remanded the matter to the Trial Court for

disposal afresh in accordance with law. Hence, this second

appeal.

Learned counsel for the appellants submits that the

plaintiff having suffered the decree in O.S.No.143/2005

wherein it was held that the Sale Deed executed in favour of

the plaintiff is hit by doctrine of lis pendens, the present suit is

not maintainable and the Trial Court had rightly rejected the

plaint in exercise of power under Order VII Rule 11 (a) and (d)

of CPC.

Respondents though served with notice have not

entered appearance in person or through their counsel.

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8.

Considered the submissions made by the learned

counsel for the appellants.

9.

The question of law involved in this appeal is,

whether the 1st Appellate Court is justified in remanding the

matter when the plaintiff in the plaint has specifically averred

that the decree obtained in OS No.143/2005 is a collusive

decree and the subject property was purchased by his wife

during the pendency of the suit.

10.

The plaintiff in para-5 of the plaint has admitted

that the subject property was purchased by his wife during the

pendency of the suit in OS No.143/2005 for specific

performance filed by the defendants No.1 to 8, and in the said

suit ,the application filed by the plaintiff for impleading was

rejected and thereafter, collusive decree was obtained by the

defendants and as such the decree passed on the basis of the

created document was not binding on the plaintiff’s title/

possession.

11.

The Hon'ble Supreme Court in the case of A Nawab

John and others -vs- V N Subramaniyam (2012) 7 SCC 739 at

paras-16 and 17 has held as follows:

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"16. This Court in Jayaram Mudaliar v. Ayyaswami [(1972)

2 SCC 200] (paras 42 to 44) quoted with approval a passage

from Commentaries on the Laws of Scotland, by Bell, which

explains the doctrine of lis pendens: (SCC p. 217, para 43)

“43. … Bell, in his Commentaries on the Laws of Scotland,

said that it was grounded on the maxim: ‘Pendente lite nibil

innovandum’. He o