1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.372 OF 2010. Mohd.Osman S/o Pir sab Age 60 years, Occ.Business, R/o Parbhani (Deleted by Court order). Hanifa Begum W/o Mehboob Khan, Age 39 years, Occ.Household, R/o Khadrabad Plot, Parbhani. Dist.Parbhani. ... Appellant. Versus Dr.Devid S/o Premkumar D.F. Sundersingh, Age 46 years, Occ.Business, R/o Khadrabad Plot, Parbhani. Dist. Parbhani. ... Respondent. ... Mr.M.M.Patil (Beedkar), advocate for the appellant. Mr.P.N.Kalani, advocate for the Respondent. ... CORAM : S.V.GANGAPURWALA,J. Date : 30.09.2010. 2 JUDGMENT 1. Heard Mr.M.M. Patil (Beedkar), learned counsel for the appellant and Mr.P.N.Kalani, learned counsel for the Respondent. 2. Admit. 3. With the consent of the parties, the Appeal is taken up for final hearing. 4. The present Respondent had filed a suit for injunction against one Mohd.Osman S/o Pir sab. The said suit came to be decreed on 1.4.2006. After the said suit was decreed, the defendant Mohd.Osman preferred an appeal on 15.4.2006. During the pendency of the appeal Mohd.Osman sold the suit property to Hanifabegum vide registered sale deed dt.1.6.2006. Thereafter, Hanifabegum made an application to implead her as an appellant in place of Mohd.Osman purportedly invoking order 22 Rule 10 of the C.P.C. The said application was allowed. Mohd.Osman came to be deleted and Hanifabegum continued the appeal. The District Court while 3 dismissing the appeal did not dialect on the merits of the matter and on the count that the decree passed by the trial Court is binding on Hanifabegum, did not interfere with the judgment and decree passed by the trial Court. The prayer of remand made by the appellant was also not considered. Against the said judgment and decree, the appellant has approached this Court. 5. Mr.M.M.Patil, learned counsel for the appellant relying on the judgment of the Division Bench of this Court in a case of "Amritlal Vadilal Vs. Kantilal Lalbhai" AIR 1931 Bombay 280, contended that the decree of injunction being personal, the order of injunction does not run with the land and as such the decree passed against the judgment debtor/original defendant is not binding on the purchaser. He also further submitted that the District Court has not decided the matter on the merits, thereby has failed to exercise jurisdiction vested in it. 6. Per contra, learned counsel for the Respondent submitted that the present appellant 4 is a purchaser pendente lite and being a purchaser pendente lite, the decree passed by the trial Court is binding on the appellant and for the said purpose relied on the judgment of the Division Bench of this Court in a case of "Krishnabai Pandurang Salagare and others Vs. Savlaram Gangaram Kumtekar" AIR 1927 Bombay 93. So also the judgment of the learned Single Judge of this Court in a case of "Murlidhar S/o Bhima Vaidya and another Vs. Nababbi Yousufkhan,deceased through legal heirs and others" 2000 (1) Bom.C.R. 670 and the judgment of the Division Bench of the Karnataka High Court in a case of "Ramchandra Deshpande Vs. Laxmana Rao Kulkarni" AIR 2000 Karnataka 298, He further submitted that the appellant did not canvass any arguments on the merits of the matter and same was rightly not considered by the lower appellate Court. He prayed to dismiss the appeal. In the facts and circumstances, following substantial questions of law arise : "(i) Whether the decree of perpetual injunction passed against 5 the defendant is binding on his purchaser pendente lite (ii) Whether the judgment of the lower appellate Court can be sustained as it has not given any finding on the merits of the matter." Before adverting to the arguments of the learned counsel it would be appropriate to refer to relevant provisions : Order 21 Rule 32 of Code of Civil Procedure - Decree for specific performance for restitution of conjugal rights, or for an injunction. - (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity 6 of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both. (2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention. 7 (3) Where any attachment under sub- rule (1) or sub-rule (2) has remained in force for (six months) if the judgment-debtor has not obeyed the decree and the decree holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment- debtor on his application. (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of [six months] from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease. 8 (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree- holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree. [Explanation. - For the removal of doubts, it is hereby declared that the expression "the act required to be done" covers prohibitory as well as mandatory injunctions.]" 9 Section 2(10) of the C.P.C. defines "judgment- debtor" which means any person against whom a decree has been passed or an order capable of execution has been made. "Section 52. Transfer of Property pending suit relating thereto. - During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property can not be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the 10 Court and on such terms as it may impose. Explanation. - For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force." 7. The Division Bench of this Court in a case of "Krishnabai Pandurang Salagare and others 11 Vs. Savlaram Gangaram Kumtekar" AIR 1927 Bombay 93, has held thus : "Here the transfer was not under the authority of the Court, and it was made during the pendency of a contentious proceeding in execution of this decree. It seems to me that this transfer cannot be allowed to affect the rights of the present plaintiff. He is entitled to such order as he would have obtained under the darkhast if there had been no transfer. If the mere fact of the transfer were accepted as a ground for disallowing his application for execution, it would mean that the transfer is allowed to affect the rights of the plaintiff, which would be contrary to the provisions of S. 52 of the Transfer of Property Act." Even the Division Bench of this Court in a case 12 of "Amritlal Vadilal Vs. Kantilal Lalbhai" AIR 1931 Bombay 280, which the learned counsel for the appellant has relied has observed thus : "The decree for injunction does not run with the land and in the absence of any statutory provision, such a decree can not be enforced against the surviving members of a joint family or against a purchaser from a judgment-debtor. But where the sons of the judgment debtor are brought on record as his legal representatives under Section 50 the decree can be executed against them and so also against the transferees from the legal representatives, under Section 52, T.P.Act. On the same principle, viz., that they are bound by the result of the execution proceedings under S.52, T.P.Act, the transferees from the original judgment-debtor during the pendency 13 of execution proceedings against him, can be held to be similarly bound and are liable to be proceeded against in execution." 8. The Division Bench of the Karnataka High Court in a case of "Ramachandra Deshpande Vs.Laxmana Rao Kulkarni" AIR 2000 Karnataka 298, relying on the aforesaid judgment of our High Court has held that a decree for injunction could be executed against the successor in interest of the deceased judgment debtor as well. Transferee pendente lite for all purposes be the representative in interest of the judgment debtor. 9. No doubt, the decree for injunction is a decree in personam and the order of injunction does not run with the land. At the same time, it will have to be borne in mind that the decree for perpetual injunction can be executed U/o 21 Rule 32 of the C.P.C. by attachment of the property of judgment debtor or by detention in Civil prison or by both. 14 10. The doctrine of lis-pendens embodied U/s 52 of the Transfer of Property Act, is intended to prevent one party to a suit from making an assignment inconsistent with the rights which may be established in the suit which might require a further party to be impleaded in order to make effectual the Court's decree. The doctrine upon which this Section is based is that it would plainly be impossible that any action or suit could be brought to a successful termination if alienation pendente lite were permitted to prevail. The doctrine of lis-pendens is based upon expediency and not upon notice. Therefore, a transferee is affected though he may take the transfer without notice of the lis. Section 52 of the Transfer of Property Act, has over-riding effect. The impact of the doctrine of lis- pendens on the sale transaction is to make it subject to the decree or order to be passed in the suit. The transferee pendente lite is a representative of the transferor and is bound by the decree. Section 52 of the Transfer of Property Act, continues to be attracted even after the decree is passed and till the rights 15 under decree are fully exercised. In view of this principle when a decree for permanent injunction has been obtained by the plaintiff - decree holder, in such circumstances, the decree holder or even his legal representatives can execute such decree against the transferee of the judgment debtor as the said transferee is bound by lis-pendens to obey such a decree because a purchaser from the defendant pendente lite is deemed to be a representative in interest of the defendant and, therefore, a representative within the meaning of the provisions of the C.P.C. 11. Though the decree for perpetual injunction is a decree in personam and it does not run with the land. 12. For all the aforesaid reasons and more particularly applying the doctrine of lis- pendens, I hold that the decree for injunction passed against the original defendant would be binding on the present appellant who is a purchaser pendente lite. 16 13. Perusal of the judgment of the lower appellate Court, it is manifest that the lower appellate Court has not dialected on the merits of the matter. The appellant being a transferee pendente lite had every right to challenge the said judgment. Once the lower appellate Court had come to the conclusion that the decree of injunction is binding upon the appellant then it should have decided the matter on factual merits. In not doing so, the lower appellate Court has failed to exercise its jurisdiction. The first appellate Court is a last fact finding Court and is duty bound to deal with the total factual matrix. In view of the same, the judgment of the lower appellate Court on this count can not be sustained and the matter deserves to be remitted back to the lower appellate Court to decide it on its own merits considering the total evidence on record, documentary as well as oral. 14. In the result, the Appeal is partly allowed. The impugned judgment and decree passed by the lower appellate Court is set aside and the matter is remitted back to the lower appellate 17 Court for decision on merits after giving an opportunity of hearing to both the sides. The parties are relegated to the First Appellate Court. They shall appear before the lower appellate Court on 19.10.2010. The lower appellate Court shall decide the appeal within a period of six (6) months from the appearance of the parties. (S.V.GANGAPURWALA,J.) asp/office/sa37210