Case: SIDDAGANGAIAH (D) THR. LRS Vs. N.K. GIRIRAJA SHETTY (D) THR. LRS

2. The appeal has been preferred by the defendant.Backdrop facts indicate that one Thopamma wife of Siddagirigowda filed suit O.S. No.245/1968nd in thef, Doddaballapurt of maintenanceate ofand fora charge onproperties mentioned in the plaint schedule. The suit was filed on 17.1.1968. During the pendency of the said suit said Siddagirigowdahusband of Thopammaexecuted a sale deed for a sum ofct ofsurvey No.11 admeasuring 5 acres 18 guntas and survey No.68/1 1 admeasuring 18 guntas, item Nos. 10 and 13 in the aforesaid suitin favour ofShetty, father of respondent No.1. On 6.2.1975, aover possessionin favour ofpurchaser regarding delivery of possession of the. The suit filed by Thopamma i.e. O.S. No.245 of 1968 was decreed on 24.6.1976 that is by granting a maintenance allowance ofper month recoverable from her husband from theng of the plaint till realisation and charge were created on the suit schedule propertiesto N.K. Giriraja Shettyon 9.11.1974. The first appeal against the same was dismissed on merits on. As the decree was not satisfied, Thopamma, thent of theof maintenance passed in the aforesaid suit. On 28.9.1977, Thopamma filed an application under Order XXI Rule 72 of the Code of Civil Procedure, 1908 (for short,in Court to grant permission to bid at the time of auction of the properties by the court in the execution caseby setting offe executing courtpermitted Thopamma to bid with respect to item Nos.1, 7, 8 and 13by setting offOn 5.10.1977, auction of the schedule properties was held and Thopamma purchased item Nos.1, 7, 8 and 13 for Rs.6. Siddagirigowda filed an application under Order XXI Rule 90 CPC on 16.11.1977. Father of respondent No.1, N.K. Giriraja Shetty also filed an application under section 47 read with Order XXI Rule 90 CPC to set aside the sale held on 5.10.1977. On 5.1.1978 settlement deed was executed between Siddagirigowda and Thopamma by which item Nos.13, 5, 10 and 12 in O.S. No.245 of 1968 and Khasra No.12 (house)However, nobeing claimed on the basis of the deed, and its execution had been denied by the parties to it.an applicationfiled by Siddagirigowdaed under Order XXI Rule 90the application filed by N.K. Giriraja Shetty in execution case for setting aside the sale was dismissed in default of appearance and sale was confirmedN.K. Giriraja Shettythe factum ofof the applicationunder Order XXI Rule 90 read with section 47 and its 3 dismissal filed Suit No.109 of 1978 for the declaration of title and restoration of possession in the Court of Civil Judge, (Junior Division), Nelmangala. The suit was later on renumbered as O.S. No.85 of 1989. However, sale certificate was issued byn favour ofThopamma on 1.1.1979 and possession certificate on 29.1.1979 and possession was delivered to her..K. Giriraja Shettyaverred in O.S. No. No.85 of 1989 that he haded the property for a sum ofon 9.11.1974. Possession was also delivered, entries were mades, he1976. Thereafter, defendant dispossessed him in the year 1976. Defendant promised to hand over the possession as such the plaintiff did not take any action. However, he entered into a deed of settlementof his wifeon 5.1.1978 of which he had no right. The title continued to vest with the plaintiff. He prayed for mesne profits also. Plaintiffded the plaint and averred that defendants have colluded with each other in making the plaintiff to invest heavy amount for purchasing properties by suppressing the fact that there was a charge of maintenance on the properties in O.S. No.245 of 1968. He was a bona fide purchaser of the property for value. Plaintiff prayed for a declaration that he was the absolute owner of the scheduled properties,on of possessionts 4 also.suit was filedwith respect to/1 admeasuring 5 acres 39 guntas and 18 guntas respectively.In the written statementa, defendantNo.1, it was contended that sale deed dated 9.11.1974 was a nominal sale deed executed on collateral security and that sum ofed from theexecution of settlement deed dated 5.1.1978between him and wife Thopamma. There wasa charge onproperties in O.S. No.245 of 1968 which was decreed and possession of the land was never given to thein hered plaint averment and contended that scheduled property belonged to the joint family of Siddagirigowda, denied theexecution of settlement deed dated 5.1.1978and that it was not binding on her. She did not claimt in theproperty under thesaid settlement deed. It was contended that maintenance suit O.S. No.245 of 1968 was decreed and there wasa charge onthe properties. The plaintiff was a friend and aner husband who was fully aware of the maintenance suit and to defeat the maintenance claim, plaintiff and herted a nominal and fictitious sale deed dated 9.11.1974. The said sale deed was executed duringthe pendency of theas hit by section 52the 5 Transfer of Property Act, 1882 (for short ‘TPShe had purchased the property through court auction in execution. Other averments made in the plaint were also denied. On 19.10.1981 a compromise petition was filed between the plaintiff and.1 wherein defendant No.1 sought withdrawal of the case set up against the plaintiff in the written. Defendant No.2, Thopamma, amended her written statement on 5.3.1987 contending that the plaintiff was not an agriculturist. He was a businessman dealing in cloth business, gold and silver jewellery.he was notentitled to purchase agricultural land vide sale deed dated 9.11.1974.Thereafter, plaint was amended to set up the plea of the bona fide purchaser for value which fact was denied by Thopammaal written statement. The plaintiff had the knowledge of the pendency of maintenance suit of 1968.defendant No.1and filed acounterclaim that sale deed was nominal and fictitious and he was readyd. The plaintifffiled objections to the counterclaim that it was not maintainable, barred by limitationplaintiff was notinto acompromise, to file a counterclaim.. On 7.11.1996, Thopamma executed a registered deed of sale for an favour ofThereafter, Thopamma also died on 17.2.2000.

Reasoning:
In the instant casewas filed by original plaintiffunder Order XXI, Rule 90 readon the groundthat he was theowner of the land in question purchased by a sale deed dated 9.11.1974 for a sum ofand was placed in possession. He was not aware of the court sale. There was no beat of drums before the auction was held. He was not aware of the execution proceedings. He was a purchaser for value. The property was not correctly valued. There were material irregularities in theof the sale.Hardship would be caused in case auction was confirmed. Thus,s made to set aside the. The aforesaid application had been dismissed.Thus, Order XXI Rule 92(3) would 16 operate as a bar for theesh suiton the ground. The plaintiff has totally suppressedthe factum ofcourt auction sale and confirmation in the plaint and did not make any averment that heapplication under Order XXI Rule 90(1) and it was dismissed on 31.3.1978 whereas thesuit was filedon 19.4.1978 after 19 days of thedismissal of theobjection and confirmationof the sale.The plaintiff has not questioned the auction so held by the court on theof fraud ored himself to be a bona fide purchaser. That plea was also raised in the applicationfiled under Order XXI RuleDismissal of the same would preclude him to file a, it was incumbent upon him to question the court auction on any permissible grounds necessary for thesh suitThe grounds which wereunder Order XXI Rule 90 cannot be raised in the instant matter. There is no pleadingof fraud orcollusion raised in the plaint. Thus, the first appellate courtand High Courtboth have travelled beyond the pleadings to give a finding thatthe auction salewas held fraudulentlyn. It isprovided in Order VI Rule 4 CPC that the plea of fraud, misrepresentation, and collusion has to specifically setin the pleadingsbefore any finding can. There is nofor 17 substantiating the plea which itself was not taken, it has neither been substantiated. Thus, the first appellatehe High Courthave committed gross illegality by giving the findingwith respect tofraud and collusion of theand judgment debtor in the court auction so. The auction purchase made byThopamma had attainedn of sale wasnot questioned bythe plaintiff. Thus, no relief could have been granted and the earlier orders have attained finality and operate as a bar for theg to thequestion of lis pendens,filed the suit in 1968 for the creation of charge of maintenance inter alia on the properties in question. Explanation to Section 52of the TP Actmakes it clear that pendency of a suit or proceeding shall be deemed to commence from thehe presentation of the plaint. Thus, on theof execution of the sale deed on9.11.1974, the suit filed by Thopamma was pending.Thus, the provisions contained in section 52 would clearly apply to the case.his Court hason wasrightly made, thereafter laid down the legal proposition. The sale was clearly subject to the provisions contained in section 52n behalf of the respondents, reliance has been placed on the provisions of section 39of the TP Actwhich deals with transfer where a third person is entitled to maintenance.It provides if such property is transferred the right may betransferee who 19 has notice thereof or if the transfer is gratuitous but not against a transfereeand without notice of the right. Section 39 clearly makes out that charge of maintenance can beble property held by a transferee.In the instantthe transferee was not put in possession of the property is apparent from the plaint and possession ofd. The sale also does not appear to be bona fide. It was clear with the intent to defeat the claim of the wife for maintenance that is why possession had not been handed over. The case of the plaintiff that though sale deed was executed in 1974,in took forcible possession in 1976, is not worthy of acceptance. Apart from that it is not so pleaded in the application under Order XXI Rule 90 thathe was notaware of thependency of the suitat the time of9.11.1974. He was a close friend ofnd was obviously aware ofthe factum oflitigation pending since 1968. Thus,could not be said to be a bona fide purchaser. Apart fromthat, the applicationunder Order XXI Rule 90 readwith section 47CPC containing the said plea stood dismissed.Reliance has also been placed on the provisions contained in section 100 of TP Act which cannot be said to be applicable. Section 100 provides that property of one person by operation of law is made the security of money for payment to another. Latter person is said to 20 havea charge onge shall be in the hands to whom such property has been transferredand without notice. As already held, N.K.Giriraja Shettycould not be said to be a bona fideBesides that, it was clearly subject to the provisions contained in section 52of the TPhat the objection under Order XXI Rule 90 stood dismissed.