CR No. 1849 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 1849 of 2008 Date of Decision: 19.08.2009 Baldev Raj ...Petitioner Vs. Dinesh Kumar & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.K.G.Chaudhary, Advocate, for the petitioner. Mr.S.S.Dinarpur, Advocate, for respondent No.1. Vinod K.Sharma,J. Respondent/objector filed objections against the judgment and decree on the plea that he had purchased the property in dispute from Judgment debtor Nathi Ram for valuable consideration as per sale deed dated 28.3.2002. Nathi Ram Judgment Debtor had entered into an agreement of sale with the decree holder on 21.10.1999 for sale of the disputed property. The suit was decreed on the basis of compromise on 21.11.2003. In the CR No. 1849 of 2008 2 execution petition the petitioner sought possession of the property in which the respondent/objector raised a plea that he was bona fide purchaser for consideration without notice. Learned Executing Court by placing reliance on the provisions of Section 52 of the Transfer of Property Act (for short the Act) summarily dismissed the objection petition by holding that subsequent vendee was bound by the decree. Learned appellate court by placing reliance on the judgment of Hon'ble Supreme Court in the case of Amit Kumar Shaw & Anr. Vs. Farida Khatoon & Anr. 2005 (2) Civil Court Cases 423 held that as the decree was based on compromise the principle of lis pendens were not applicable and therefore, it was incumbent upon the learned Executing Court to have framed issues on the objection petition and given opportunity to the parties to lead evidence. The order of the learned Executing Court was set aside and the case remanded back for decision on the objections in accordance with the law. Mr.K.G.Chaudhary, learned counsel appearing on behalf of the petitioner has challenged the order passed by the learned appellate court on the contention that the judgment is without jurisdiction as no appeal was competent against the summary rejection of objections by a vendee who purchased the property during the pendency of the suit. In support of this contention, learned counsel appearing on behalf of the petitioner placed reliance on the judgment of Hon'ble Supreme Court in the case of Mohamed Masthan Vs. Society Congregation, Bros., S. Heart & Anr. 2006 (2) RCR (Civil) 612, wherein Hon'ble Supreme Court was pleased to CR No. 1849 of 2008 3 lay down as under:- “9. It is not in dispute that the consent decree passed in O.S.No.1220 of 1987 has not yet been set aside. It is furthermore not in dispute that in terms of the consent decree, the First Respondent herein is in possession. A decree for permanent injunction has been passed in its favour. The appellant herein in terms of the decree passed in his favour in OS No.140 of 2003 and the purported sale deed pursuant thereto on 17.6.2003, merely has stepped into the shoes of the Second Respondent. He cannot claim a better title than her. Thus, so long the decree passed in the said OS No.1220 of 1987 is not set, and/or the original suit No.381 of 2003 is not decreed, the possession of the First Respondent herein could not have been interfered with. The slip-shod manner in which the purported delivery of possession was sought to be effected has been noticed by us. The Central Nazir did notice that the schedule property was not in possession of the judgment debtor in OS No.140 of 2003 but still the possession thereof was purported to have been taken through Senior Bailiff under Order 21, Rule 35 of the Code of Civil Procedure. Even the Senior Baillif in his report states that he went to the plaintiff's place. The defendant was not there. How the land was identified had not been shown. Even the Village Administrative Officer refused to sign. CR No. 1849 of 2008 4 10. In that view of the mater, when the First Respondent in its application under Section 151 of the Code of Civil Procedure stated that it continued to be in possession, the same cannot be disbelieved. In any event, having regard to the fact that the First Respondent could not have been dispossessed pursuant to or in furtherance of the decree passed in the said OS No.140 of 2003, it would be entitled to continue to possess the said property and in the event, possession has been taken symbolically or otherwise, possession should be restored to the First Respondent.” Reliance was also placed on the judgment of Hon'ble Supreme Court in the case of Khazan Singh (D) By LRs. Vs. Gurbhajan Singh & Ors. 2007 (2) RCR (Civil) 340, wherein it has been laid down that after 1976 amendment in the Code of Civil Procedure (for short the Code) an appeal does not lie against an order passed in execution. Reliance was also placed on the judgment of this court in the case of Paramjit Singh Vs. Mindo & Ors. 2006 (4) RCR (Civil) 730, wherein this court was pleased to lay down that objections by the subsequent purchaser during the pendency of the suit are not required to be tried by framing issues and giving opportunity to lead evidence as the vendee during the pendency of litigation is bound by the decree as he derived title from the vendor. Reliance was also placed on the judgment of Gouri Dutt Maharaj Vs. Sukur Mohammed and others AIR (35) 1948 Privy CR No. 1849 of 2008 5 Council 147, wherein Hon'ble Privy Council was pleased to lay down that provisions of Section 52 of the Transfer of Property Act applies to any decree or order, even though the decree may not reflect precise relief claimed. Even compromise decree comes within the purview of Section 52 of the Act. Reliance was also placed on the judgment of Hon'ble Karnataka High Court in the case of A.M.Subbamma Vs. A.V.Kushalappa & Ors. 2007 (4) Civil Court Cases 656, wherein it was held that when the suit is instituted seeking relief then an application under Order 21 Rule 97 of the Code is not maintainable as two different proceedings cannot be initiated for the same relief. Reliance was also placed on the judgment of Hon'ble Supreme Court in the case of Sanjay Verma Vs. Manik Roy & Ors. 2007 (1) CCC 401, wherein again Hon'ble Supreme Court was pleased to lay down that the transferee pendente lite is bound by the decree, just as much as he was a party to the suit. Mr.K.G.Chaudhary, learned counsel appearing on behalf of the petitioner further placed reliance on the judgment of this court in the case of Jaswant Singh Vs. Ralla Singh & Ors. 2005 (3) CCC 262, wherein this court was pleased to lay down that objections by subsequent purchaser during the pendency of the suit are not to be adjudicated like a civil suit but have to be summarily disposed of as the transaction is hit by doctrine of lis pendens. Reliance was also placed on the judgment of this court in the CR No. 1849 of 2008 6 case of Balwinderjit Kaur Vs. Financial Commissioner (Appeals), Punjab and another AIR 1987 Punjab & Haryana 189, wherein again it was held that subsequent vendees are bound by the decree against the vendors and the plea that they were bona fide purchase without notice is of no consequence. Reliance was also placed on the judgment of Hon'ble Madhya Pradesh High Court in the case of Smt.Vraj Kuwar Bai and others Vs. Kunjbiharilal Krishnachandra and others AIR 1971 Madhya Pradesh 109, wherein again the view was taken by this court that the doctrine of lis pendens applies to suit for specific performance of contract to execute the sale deed in respect of the land. Mr.K.G.Chaudhary, learned counsel appearing on behalf of the petitioner also placed reliance on the judgment of Hon'ble Allahabad High Court in the case of Ganga Charan Vs. Bans Bahadur Singh and another AIR 1975 Allahabad 25, wherein it has been held that a transferee cannot rely upon section 27 (b) of the Specific Relief Act, 1877 or Section 19 (b) of the Specific Relief Act, 1963 for avoiding the applicability of Section 52 of the Transfer of Property Act nor there is any necessity for the court to go into the question whether the transfer pendente lite was bona fide and for value. Finally, reliance was placed on the Full Bench judgment of Hon'ble Mysore High Court in the case of Khaja Bi and others Vs. Mohammad Hussain AIR 1964 Mysore 269, wherein the Hon'ble Full Bench of Mysore High Court was pleased to lay down that sale during the CR No. 1849 of 2008 7 pendency of the suit for specific performance is affected by doctrine of lis pendens. On the basis of well established law referred to above Mr.K.G.Chaudhary, learned counsel appearing on behalf of the petitioner contended that the order passed by the learned appellate authority deserves to be set aside, and that of the learned executing court restored. Mr. S.S.Dinarpur, learned counsel appearing on behalf of respondent No.1, however, contends that in the present case principles of lis pendens were not applicable as the decree passed was collusive. In support of this contention, he placed reliance on the judgment of Hon'ble Supreme Court in the case of Amit Kumar Shaw & Anr. Vs. Farida Khatoon & Anr. 2005 (2) RCR (Civil) 651 i.e. the judgment on which reliance was placed by the appellate court to accept the appeal. Hon'ble Supreme Court in the case of Amit Kumar Shaw & Anr. Vs. Farida Khatoon & Anr. 2005 (2) Civil Court Cases 423 (supra) has been pleased to lay down as under:- “15. Section 52 of the Transfer of Property Act is an expression of the principle “pending a litigation nothing new should be introduced”. It provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his appointment. This Section is based on equity and good conscience and is intended to protect the parties to litigation against alienations by their opponent during the CR No. 1849 of 2008 8 pendency of the suit. In order to constitute a lis pendens, the following elements must be present: 1. There must be a suit or proceeding pending in a Court of competent jurisdiction. 2. The suit or proceeding must not be collusive. 3. The litigation must be one in which right to immovable property is directly and specifically in question. 4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. 5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. Reliance was also placed on the Division Bench judgment of Hon'ble High Court of Travancore-Cochin in the case of Venkiteswara Pai Vamana Pai Vs. Kunju Vava Mahomad Ali and others AIR 1952 Travancore-Cochin 309, wherein Hon'ble High Court of Travancore- Cochin was pleased to lay down as under:- “When a compromise is entered into by a party to the suit with the opposite party subsequent to the transfer of his interests in favour of a stranger with a view to defraud that stranger transferee that compromise will not affect the interests of the transferee and the decree passed on such a compromise will not affect that transferee, that is to say, the principle of 'lis pendens' will not apply to such a case. On consideration of matter, I find no force in the contention CR No. 1849 of 2008 9 raised by the learned counsel for the petitioner. In case plea of petitioner is accepted, it will leave the respondent remediless, as subsequent vendee, will never be able to file a suit being third party as remedy would be to file objections, and those will also be rejected summarily. The parties to suit can not by compromise make subsequent vendee remediless, it cannot be permitted in law. The contention raised by the learned counsel for the petitioner cannot be disputed, as they are based on well established principle of law that lis pendens vendee is bound by the decree, and has no independent right to raise objections. The objections raised by his lis pendens vendee can be rejected summarily. However, in the present case question involved is, whether principle of lis pendens would apply to the facts of this case or not? Once it is not disputed, that judgment debtor suffered the decree on the basis of compromise after sale of property to the objector, then the principles of lis pendens could not be applied in view of law laid down by the Hon'ble Supreme Court in the case of Amit Kumar Shaw & Anr. Vs. Farida Khatoon & Anr. (supra) and the judgment of Division Bench judgment of Hon'ble High Court of Travancore-Cochin in the case of Venkiteswara Pai Vamana Pai Vs. Kunju Vava Mahomad Ali and others (supra). Reliance of the learned counsel for the petitioner on the judgment of Hon'ble Supreme Court in the case of A.M.Subbamma Vs. A.V.Kushalappa & Ors. (supra) to contend that it was not open to the CR No. 1849 of 2008 10 respondent/objector to avail two remedies i.e. a civil suit as well as objections can also be of no help, as it is now well established that the question regarding the validity of decree is to be decided by the learned Executing Court and not by way of Civil Suit. Even otherwise, it is for the learned Executing Court to see as to whether the objections filed were maintainable or not after framing necessary issues and letting the parties to lead evidence as rightly held by the appellate court. For the reasons stated above, I find no ground to interfere with the order passed by the learned lower appellate court. Revision dismissed. (Vinod K.Sharma) 19.08.2009 Judge rp