Case: Supreme General Films Exchange Ltd Vs. His Highness Maharaja Sir Brijnath Singhji Deo Of Maihar &amp;O

him to sue for the declarations he sought. He was not seeking a merely whimsical or eccentric or an unreasonable declaration of a right in property with no enforciable legal claims over it which could remain unaffected by the defendant-appellants claims as a lessee,17. Surjya Kumar v, Girish Chandra, AIR 1951 Assam 101, was cited to contend that the declaration sought by the plaintiff was unnecessary if the lease of the defendant-appellant was void. we find, from the pleadings in the case before us, that the defendant-appellant had actually denied the plaintiffs rights as a mortgagee and also the validity of the compromise decree in suit No. 15-A of 1954. No doubt the plaintiff had not sought a decree for possession as that could not be granted at the time whom the suit was filed. Nevertheless. he had reasonable grounds to apprehend that the defendant-appellant company will rely upon its alleged lease, as it did. in the course of execution proceedings, to resist delivery of actual possession to an auction purchaser, The existence of lessee rights would certainly affect the price an auction purchaser would be prepared to pay for the property or, in other words, what a mortgagee or one who had got the property attached could realize for the property to satisfy his dues. Thus, the plaintiff needed the declaration; and in the circumstances of the case. the declarations sought for could not be reasonably denied to him.18. The contention that the case fell outside the purview of Section 52 of the Transfer of Property Act as the lease was executed in purported satisfaction of an antecedent claim rests upon the terms of an agreement of 1948, embodied in a letter, on the strength of which the defendant-appellant had filed his suit for specific performance. We find that the terms of the compromise decree in that suit and lease-deed of 1956 purported to confer upon the defendant-appellant new rights, Indeed, there are good grounds for suspecting that the compromise in the suit for specific performance was adopted as a device to get round legal difficulties in the execution of the lease of 1956 in favour of the defendant-company. We are unable to accept the argument, sought to be supported by the citation of Bishan Singh v. Khazan Singh. 1959 SCR 878 = (AIR 1958 SC 8381 that the lease was merely an enforcement of an antecedent or pre-existing right. We think that it purported to create entirely new rights pendente lite. It was, therefore, struck by the doctrine of lis-pendens, as explained by this Court in Jayaram Mudaliar v. Ayyaswami. (1973) 1 SCR 139 = (AIR l973 SC 569), embodied in Section 52 of the. Transfer of Property Act.19. An alternative argument of the appellant was that a case falling within Section 65-A (2) (e) of the Transfer of Property Act, confining the duration of a lease by a mortgagor to three years, being a special provision, displaces the provisions of Section 52 of the Transfer of Property Act. This argument overlooks the special objects of the doctrine of lis-pendens which applies to a case in which litigation, relating to property in which rights are sought to be created pendente lite by acts of parties, is pending. Moreover, for the purposes of this argument, the defendant-appellant assumes that the provisions of Section 65-A (2) (e). Transfer of Property Act are applicable. If that was so, it would make up substantial difference to the rights of the defendant-appellant, which would vanish before the suit was filed if Section 65-A applies. We however think that, as the special doctrine of lis- pendens is applicable here, the purported lease of 1956 was invalid from the outset. In this view of the matter, it is not necessary to consider the applicability of Section 65-A (2) (e) which the defendant-appellant denies, to the facts of this case,20. As regards the applicability of Section 64. Civil Procedure Code, we find that parties disagree on the question whether the attachment made by the Central Bank on 20-4-1955, in execution of the decree of which the plaintiff-respondent was the assignee, existed on the date of the impugned lease of 30-3-1956. Learned Counsel for the appellant relied upon the terms of an order recorded on the order sheet, in the Court of Additional District Judge. Jabalpur, in Civil Suit No. 3-B of 1952, on 25-1-1956. showing that in view of the stay order received from the High Court, execution could not proceed. The order sheet, however, also contains the enigmatic statement that execution was dismissed as infructuous but the attachment was to continue for six months. The High Court had treated the last part of the statement in the order sheet as void and ineffective presumably on the ground that the Additional District Judge had no jurisdiction either to lift the attachment or to dismiss the execution proceedings after the High Court had given its order staving all further action in execution proceedings. The terms of the High Courts order are not evident from anything placed before us, on the other hand, learned Counsel for the plaintiff respondent relies upon a subsequent order of the same Court, passed on 30-4-1960. in the same suit. This order shows that a compromise had been arrived at between the decree holder and the judgment-debtor under which the decree holder had agreed to lift attachment of property except with regard to Plaza Talkies which was to continue. We are, therefore, unable to hold that the concurrent findings of the trial Court and the High Court, that the Plaza Talkies was attached in execution of decree in suit No. 3-B of 1952 -on 4-5-1955 and that this attachment was in existence when the impugned lease was executed on 30-3-1956. are erroneous. On these findings, the lease of 1956 was certainly struck by the provisions of Section 64. Civil Procedure Code also. Section 64. Civi1 Procedure Code, in fact, constitutes an application of the doctrine of lis pendens in the circumstances specified there.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]These arguments rest on the assumption that no declaratory relief can be granted outside the ambit of Section 42 of the Specific Relief Act,think that the decision in this case also does not assist the appellant much.The result is that Section 42 merely gives statutory recognition to a well-recognized type of declaratory relief and subject it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside Section 42.16. We think that the circumstances in which a declaratory decree under Section 42 should be awarded is a matter of discretion depending upon the facts of each case. No doubt a complete stranger whose interest is not affected by anothers legal character or who has no interest in anothers property could not get a declaration under Section 42, Specific Relief Act with reference to the legal character or the property involved. Such, however, is not the case before us. The plaintiff- respondent, in the case before us. had not only the rights of a mortgagee decree-holder with regard to the property involved but he was also the assignee of the rights of the Bank which had got the property in question attached in execution of its decree. We find, from connected special leave petitions against orders under Order 21.Rule 95. Civil Procedure Code that the plaintiffs wife became the auction purchaser of this property during the pendency of the litigation now before us. At the time when he filed the suit the plaintiff may have been looking forward to purchasing the property. Although, the mere possibility of future rights of an intending purchaser could not, by itself, be enough to entitle him to get a declaration relating to a purported lease affecting the right to possess and enjoy the property. Yet, we think that the plaintiff possessed sufficient legal interest in the theatre, as a mortgagee as well as an assignee of a decree holder who had got the property attached before he filed his suit, so as to enable him to sue for the declarations he sought. He was not seeking a merely whimsical or eccentric or an unreasonable declaration of a right in property with no enforciable legal claims over it which could remain unaffected by the defendant-appellants claims as aThe contention that the case fell outside the purview of Section 52 of the Transfer of Property Act as the lease was executed in purported satisfaction of an antecedent claim rests upon the terms of an agreement of 1948, embodied in a letter, on the strength of which the defendant-appellant had filed his suit for specific performance. We find that the terms of the compromise decree in that suit and lease-deed of 1956 purported to confer upon the defendant-appellant new rights, Indeed, there are good grounds for suspecting that the compromise in the suit for specific performance was adopted as a device to get round legal difficulties in the execution of the lease of 1956 in favour of the defendant-company. We are unable to accept the argument, sought to be supported by the citation of Bishan Singh v. Khazan Singh. 1959 SCR 878   = (AIR 1958 SC 8381 that the lease was merely an enforcement of an antecedent or pre-existing right. We think that it purported to create entirely new rights pendente lite. It was, therefore, struck by the doctrine of lis-pendens, as explained by this Court in Jayaram Mudaliar v. Ayyaswami. (1973) 1 SCR 139   = (AIR l973 SC 569), embodied in Section 52 of the. Transfer of Propertyargument overlooks the special objects of the doctrine of lis-pendens which applies to a case in which litigation, relating to property in which rights are sought to be created pendente lite by acts of parties, is pending. Moreover, for the purposes of this argument, the defendant-appellant assumes that the provisions of Section 65-A (2) (e). Transfer of Property Act are applicable. If that was so, it would make up substantial difference to the rights of the defendant-appellant, which would vanish before the suit was filed if Section 65-A applies. We however think that, as the special doctrine of lis- pendens is applicable here, the purported lease of 1956 was invalid from the outset. In this view of the matter, it is not necessary to consider the applicability of Section 65-A (2) (e) which the defendant-appellant denies, to the facts of this case,20. As regards the applicability of Section 64. Civil Procedure Code, we find that parties disagree on the question whether the attachment made by the Central Bank on 20-4-1955, in execution of the decree of which the plaintiff-respondent was the assignee, existed on the date of the impugned lease of 30-3-1956. Learned Counsel for the appellant relied upon the terms of an order recorded on the order sheet, in the Court of Additional District Judge. Jabalpur, in Civil Suit No. 3-B of 1952, on 25-1-1956. showing that in view of the stay order received from the High Court, execution could not proceed. The order sheet, however, also contains the enigmatic statement that execution was dismissed as infructuous but the attachment was to continue for six months. The High Court had treated the last part of the statement in the order sheet as void and ineffective presumably on the ground that the Additional District Judge had no jurisdiction either to lift the attachment or to dismiss the execution proceedings after the High Court had given its order staving all further action in execution proceedings. The terms of the High Courts order are not evident from anything placed before us, on the other hand, learned Counsel for the plaintiff respondent relies upon a subsequent order of the same Court, passed on 30-4-1960. in the same suit. This order shows that a compromise had been arrived at between the decree holder and the judgment-debtor under which the decree holder had agreed to lift attachment of property except with regard to Plaza Talkies which was to continue. We are, therefore, unable to hold that the concurrent findings of the trial Court and the High Court, that the Plaza Talkies was attached in execution of decree in suit No. 3-B of 1952 -on 4-5-1955 and that this attachment was in existence when the impugned lease was executed on 30-3-1956. are erroneous. On these findings, the lease of 1956 was certainly struck by the provisions of Section 64. Civil Procedure Code also. Section 64. Civi1 Procedure Code, in fact, constitutes an application of the doctrine of lis pendens in the circumstances specified there.