IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD Dated this the 5 th day of July, 2013 BEFORE THE HON’BLE MR. JUSTICE N. KUMAR REGULAR SECOND APPEAL NO. 2329 OF 2006 BETWEEN: 1. K. Sivaramakrishna Age: 40 years S/o Venkatarama Rao Mangamma Compound Sanjeevarayanakote Post Bellary Taluk 2. K. Ravishankar Age: 34 years S/o Venkatarama Rao Mangamma Compound Sanjeevarayanakote Post Bellary Taluk ...Appellants (By Sri M.V.V. Ramana, Advocate) AND: 1. Narayana Age: 32 years S/o Dharmalinga Settiar Rep. by his GPA holder R
Transcript
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 5th day of July, 2013
BEFORE
THE HON’BLE MR. JUSTICE N. KUMAR
REGULAR SECOND APPEAL NO. 2329 OF 2006
BETWEEN:
1. K. SivaramakrishnaAge: 40 yearsS/o Venkatarama RaoMangamma CompoundSanjeevarayanakote PostBellary Taluk
(R-1 unserved; R2 deceased no need to bring LRs of deceasedR2 vide order dated 11-02-2013)
This RSA filed under Section 100 of CPC, against thejudgment and decree dated 12-04-2006 passed in RANo.165/2004 on the file of the Prl. District Judge, Bellary,dismissing the appeal filed against judgment and decreedated 26-09-1998 passed in OS No.3/1987 on the file of thePrl. Civil Judge (Jr. Dn.), Bellary.
This RSA coming on for admission this day,the Court delivered the following:
J U D G M E N T
This appeal is preferred by defendants 3 and 4
challenging the concurrent finding recorded by the Courts
below that the plaintiff has established his title to the suit
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schedule property and that he is entitled for possession of
the same.
2. For the sake of convenience, the parties are
referred to as per their original rank in the suit.
3. The subject matter of the suit is land bearing
Sy.No.257 measuring 14 acres 31 cents situated in
Sanjeevarayana Kote Village, registration and sub-
registration District at Bellary paying land revenue of
Rs.10.45.
4. The case of the plaintiff is that, he is an
absolute owner of the schedule property having purchased
the same for a sum of Rs.3,220/- being the highest bidder in
an auction sale held by the Court in Execution Case
No.308/1982, initiated to execute the decree in
O.S.No.791/1978 on the file of the Principal Civil Judge,
Bellary. The Court auction was held on 27.8.1984 and
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subsequently the sale was duly confirmed. Prior to the sale,
the suit property was attached on 22.10.1982 in the said
Execution proceedings. After confirmation of the sale, the
plaintiff took possession of the suit land on 28.1.1985
through the Court.
5. The plaintiff learnt that that the defendant in
collusion with the judgment debtor T.Mareppa who is his
relative had taken a nominal sale deed on 18.8.1983 under
registered document No. 3204/83-84 of Bellary sub-
registrar’s office; the sale deed was never intended to be
acted upon as it was intended to defeat the decree passed in
O.S. No. 791/1978. The sale in favour of the defendant
dated 18.3.1983 being subsequent to the date of attachment
i.e., 22.10.1982, is inoperative in law and not binding on the
plaintiff; and no right, title, interest over the schedule
property is conferred in favour of the defendant by virtue of
the sale deed dated 18.8.1983. The plaintiff is a bona fide
purchaser for valuable consideration.
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6. After obtaining possession of the suit property,
the plaintiff continued to be in possession of the same until
it was disturbed in September 1985 by the defendant.
Thereafter, the plaintiff issued a lawyer’s notice to the
defendant calling upon him not to obstruct his possession
and the same was duly acknowledged by the defendant, but
he failed to issue any reply. However, the defendant illegally
occupied the suit property and got mutated the revenue
records in his name and was shown as Pattedar of suit land
on the basis of the inoperative sale deed referred above. The
protest of the plaintiff in this regard, before the Tahsildar of
Bellary, was in vain and the Tahsildar, by his order dated
8.5.1986 directed the plaintiff to seek remedy in a Civil
Court. As cloud is cast on the title, suit came to be filed for
declaration of the plaintiff’s right, title and interest in the
suit property and also for its possession.
7. The suit was originally filed against Valmiki
Pennappa. Subsequently, the plaint was amended by
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introducing para 6(a) to the effect that while the matter was
so pending, the 1st defendant has executed a registered sale
deed dated 16.4.1992 in favour of the 2nd defendant for
valuable consideration in respect of 3.03 acres and another
registered sale deed in favour of 3rd defendant in respect of
the landed property measuring 6 acres 35 cents in the same
survey number. The said property is nothing but the plaint
schedule property; defendants 2 and 3 being fully aware
that the said properties have been attached by the Court in
Execution Case No. 308/1982 on 22.10.1982 have
purchased the landed properties in collusion with the 1st
defendant to defeat the rights of the plaintiff in the said
property and that the said sale deeds have been intentionally
executed by 1st defendant in favour of defendants 2 and 3.
Since the properties purchased by defendants 2 and 3 have
been attached by the Court, the said sale transactions are
void. The properties are purchased by defendants 2 and 3
during the pendency of the suit and the execution
proceedings, having knowledge of the order of attachment
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passed by the Court and therefore they are not bona fide
purchasers for valuable consideration.
8. The first defendant who was duly served did not
enter appearance and was placed exparte. The 3rd defendant,
however, filed a detailed statement contesting the claim; this
written statement is a blanket denial of all the allegations in
the plaint. After denying all the allegations, at para 11 he
has pleaded his case specifically that, the 2nd defendant
purchased a portion of the suit schedule property measuring
3.73 acres under a registered sale deed dated 16-4-1992
from one Pennappa for a valid consideration and the 3rd
defendant has purchased a portion of the land measuring 6
acres 35 cents through a registered sale deed dated 16-4-
1992 for valuable consideration. Defendants 2 and 3 have
purchased the suit schedule property for valuable
consideration after making due enquiry with regard to the
title and after verification of all the relevant records.
Defendants 2 and 3 have purchased only to an extent of
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10.08 acres of land out of 14.31 acres in the said survey
number; after purchasing the same, the mutation was also
effected in their names; record of rights also stands in their
names and they were put in possession of the property on
the date of execution of the registered sale deed in their
favour.
9. The 1st defendant had purchased the suit
property for a valuable consideration on 18-08-1983 from
T. Mareppa and the record of rights stood in his name.
Since the date of purchase, he was in possession and
enjoyment of the suit property till the same was sold in
favour of defendants 2 and 3. Even otherwise the sale deed
executed in favour of the 1st defendant is prior to the alleged
confirmation of sale and issuance of sale certificate in favour
of the plaintiff as such, the plaintiff will not get any right,
title or interest over the suit schedule property.
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10. Even otherwise the plaintiff is not entitled to the
relief as claimed in the plaint without seeking the relief of
cancellation of sale deeds executed in favour of the
defendants 2 and 3. The allegation of attachment of the suit
schedule property before confirmation of the sale will not
give rise to cause of action. Nor will the same confer any
right, title or interest over the suit schedule property. The
attachment is only for collection of the amount, but not to
convey title to the property; defendants 2 and 3 are the
bonafide purchasers for valuable consideration and their
rights have to be protected under law.
11. The plaintiff is not entitled to any relief as
claimed in the plaint and has filed the suit only to harass
and coerce defendants 2 and 3 to come to unconscionable
terms and to grab their property. The impleading application
is filed by the plaintiff after expiry of three years from the
date of execution of the sale deed. Hence the suit of the
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plaintiff is barred by time and is liable to be dismissed. The
plaintiff is not entitled to any relief as claimed.
12. An additional written statement is filed on behalf
of the defendants contending that the defendants 2 and 3
were minors as on the date of alleged attachment and related
proceedings. Hence knowledge of attachment of suit
properties by the Court can not be attributed to defendants 2
and 3. Even otherwise, either attachment of the suit property
or issuance of sale certificates are not mentioned in the
encumbrance certificate or any revenue documents. Alleged
attachment by the Court is void in law and the Court has not
followed the procedure prescribed under Order XXI Rule 54
of the Code of Civil Procedure. The order sheet simply
mentions “attach properties of the judgment debtor” and the
same is not sufficient under law. The copy of the order
should be affixed on conspicuous part of the Court house
and also in the Grama Chavadi or Village Accountant’s
Office and in the Office of the Deputy Commissioner and also
11
in the Office of the Grama Panchayat. Once the said
procedure which is a mandatory requirement under Order
XXI Rule 54 of the Code of Civil Procedure is not followed,
then, the attachment itself is illegal and void in law; the
subsequent issuance of proclamation of sale and the auction
conducted by the Court is also void. The Court proceedings
are not binding on the defendants as the said proceedings
are without jurisdiction.
13. The second defendant filed a memo adopting the
written statement filed by the third defendant.
14. On the aforesaid pleadings, the trial Court
framed the following ten issues:
1. Whether the plaintiff proves that the plaintiff has
purchased the suit schedule land through a court
auction was held on 27-08-1984?
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2. Whether the plaintiff proves that he was in
possession of the suit land in pursuance of the
court sale?
3. Whether the plaintiff proves that the registered
sale deed dated 18-8-1983 executed by the
judgment Debtor Marappa in favour of the 1st
defendant?
4. Whether the defendants proves that the IInd
defendant and III defendant have purchased the
land Sy.No.257 to an extent of 10.08 acres out of
14.31 cents through Registered Sale deed dated
16-04-1992?
5. Whether defendants proves that the 2nd and 3rd
defendants are the bonafide purchasers and they
are in possession of the suit schedule property?
6. Whether the suit is property valued and C.F. paid
is insufficient?
7. Whether the suit is barred by law of limitation?
8. Whether the suit is not maintainable without
seeking the relief of cancellation of sale deed?
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9. Whether the plaintiff is entitled for the relief as
sought for?
10. What order or decree?
15. The plaintiff in order to substantiate his claim
examined his power of attorney holder by name Babu as
P.W-1 and produced 12 documents, which are marked as
Exs.P-1 to 12. On behalf of defendants, the third defendant-
Ravishankar was examined as D.W-1; the defendants
also produced 22 documents, which are marked as Exs.D-1
to D-22.
16. The trial Court on consideration of the aforesaid
oral and documentary evidence on record held that the
plaintiff has proved that he purchased the suit schedule land
through Court auction, which was held on 27.08.1984.
Further he has also proved that he was put in possession of
the suit land in pursuance of the Court sale. He has also
proved that sale deed executed by the judgment debtor in
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favour of Mareppa on 18.08.1993 is void, as it was executed
during the subsistence of valid attachment of the property.
The plaintiff has proved that defendants-2 and 3 have
purchased an extent of 10 acres 8 cents out of 14 acres 31
cents through registered sale deed dated 16.04.1992 and
defendants 2 and 3 have failed to prove that they are
bonafide purchasers. The suit is not barred by law of
limitation and that it is maintainable without seeking the
relief of cancellation of the sale deed. Therefore it proceeded
to grant declaration that the plaintiff is the owner of the suit
schedule property. He is entitled to possession of the suit
schedule property and that he is also entitled for future
mesne profits from the date of suit till he is put in
possession of the suit property.
17. Aggrieved by the said judgment and decree of
the trial Court, defendants-2 and 3 preferred Regular Appeal
in RA No.165/04 before the District Judge, Bellary. The
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learned District Judge after reassessment of the material on
record, formulated the following points for consideration.
1. Whether the plaintiff proves that he has
purchased the suit schedule land bearing
Sy.No.257 measuring 14 acres 31 cents in a court
auction held on 27-08-1984?
2. Whether the plaintiff proves that the registered
sale deed, dated 18-08-1983 executed by T.
Mareppa, in favour of the first defendant is illegal
and not binding on the plaintiff?
3. Whether the plaintiff proves that the defendants 2
and 3 who have purchased the land to the extent
of 10 acres 8 cents in Sy.No.257, on 16-4-1992
from the first defendant are bound by the result
of this case?
4. Whether the suit is barred by law of Limitation?
5. Whether the suit is not maintainable without
seeking the relief of cancellation of sale deeds.
6. Whether the plaintiff is entitled to possession of
the suit land measuring 14 acres 31 cents in
Sy.No.257?
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7. Whether the interference in the order of the trial
Court is necessary?
8. What order?
18. He held that the finding recorded by the trial
Court that the plaintiff has proved that he has purchased
the suit property in Court auction held on 27.08.1984 is
valid and accordingly he affirmed the said finding. He also
held that the sale deed executed by T. Mareppa, the
judgment debtor, in favour of first defendant herein on
18.08.1983 is void as it was executed during the subsistence
of the order of attachment. Further it held that as
defendants-2 and 3 have purchased a portion of the suit
property during the pendency of the suit, the right depends
on the result of this proceedings. He affirmed the finding of
the trial Court that the suit is not barred by time and there
was no necessity for the plaintiff to seek cancellation of the
sale deed in favour of defendants-2 and 3. It also held that
decree for possession is valid and legal. Accordingly, it
17
affirmed the judgment and decree of the trial Court and
dismissed the appeal.
19. Aggrieved by the said judgment and decree of
the two Courts below, the plaintiff has preferred this second
appeal.
20. The substantial questions of law that arise for
consideration in this second appeal are as under:
1) Whether the sale deed executed by the judgment
debtor, T. Mareppa, in favour of the first
defendant in this suit is void because of the
attachment of the suit property by virtue of the
order of the Court in Execution case on
22.10.1982?
2) Whether defendants-2 and 3 can claim to be the
bonafide purchasers for valuable consideration
without notice of attachment as well as the
Court sale of the suit property?
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21. The learned Counsel for the appellant assailing
these judgments contends that the attachment of the suit
property in the execution proceedings is not in accordance
with Order 21 Rule 54 CPC and therefore the sale deed
executed by the judgment debtor in favour of the first
defendant is not vitiated and the first defendant had a valid
title to the suit property. Secondly he contended that before
the purchase of the property, defendants-2 and 3 looked into
the revenue records, obtained encumbrance certificate and
made all requisite enquiries. Since, this attachment and sale
certificate issued by the Court was not recorded anywhere,
they proceeded to purchase the property and therefore they
are bonafide purchasers for valuable consideration without
notice of the attachment as well as the sale of the suit
property in Court auction. Therefore he submits that the
Courts below were not justified in granting declaration in
favour of the plaintiff or in holding that the sale deed
executed in favour of the first defendant is void and therefore
the judgment and decree passed by the Courts below
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requires to be interfered with and the suit of the plaintiff is
to be dismissed.
POINT NO.1
22. Undisputed facts are, the suit property was
attached in Execution No.308/82 on the file of the Principal
Munsiff at Bellary, which was filed to execute the decree for
money in O.S.791/78 and the order of attachment is dated
21.10.1982. Ex.P-3 is the Mahazar drawn in presence of the
witnesses attaching the suit property on 22.10.1982. The
said Mahazar discloses that the order of attachment was
affixed to the suit land and it was also proclaimed by beat of
drums in the village, declaring that the judgment debtor
should not alienate the said property and nobody else shall
purchase the said property. Ex.P-9 is the attachment
warrant issued by the Executing Court. It reads as under:
“In the Court of the Principal Munsiff at Bellary
Exc.No.308/82 O.S. No.791/78
Sanath Kumar //vs//S/o Sankar Setty
The MareppaS/o TalavaruMareppa
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MajorMerchant’s clerkBellary
…D.Hr
AgriculturistD.No.5/XIV wardBellary …J.Dr.
“Whereas you have failed to satisfy a
decree passed against you on the 29th day of
January 1979 in OS. 791/78 in favour of Sanath
Kumar, the plaintiff for a sum of Rs.2,645/-. It is
ordered that you, the J.Dr, be and you are hereby
prohibited and restrained until the further order
of this Court from transferring or changing the
property specified in the schedule hereunto
annexed by sale, gift or otherwise and that all
persons be and they are hereby prohibited from
receiving the same by purchases, gift or
otherwise.
Given under my hand and the seal of this
Court dated this 8th day of October 1982.
SCHEDULE
Lands situate in the village of
Sanjeevarayanakota in Bellary Taluk, within the
registration and sub-registration District of
Bellary.
Sl.No. Sy.No. Extent1 256 9-122 257 14-31
21
Note: It is full Survey numbers. Hence
boundaries are not necessary.
Sd/-xxxxxSheristadar”
23. It also discloses that one copy of the said
proclamation was exhibited in the Deputy Commissioner’s
Office notice board and one copy was affixed on the notice
board of the Principal Munsiff and thereafter the list of
properties attached was submitted to the Court.
Subsequently, the property was brought to sale on
27.08.1984 and the plaintiff purchased the suit property;
the sale was confirmed and the sale certificate came to be
issued on 12.11.1984. Thereafter, as per the direction of the
Court, the Bailiff went to the spot along with the plaintiff
auction purchaser and put him in possession of the suit
property in the presence of the witnesses on 28-01-1985
and the acknowledgment issued by the plaintiff for having
received possession was also produced before the Court. In
the meanwhile, the judgment debtor T. Mareppa, executed a
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registered sale deed in favour of the first defendant herein on
18.8.1983, who in turn sold an extent of 10 acres 37 guntas
out of the suit land in favour of defendants-2 and 3 under
two registered sale deeds dated 16.04.1992, i.e., during the
pendency of the plaintiff’s suit for declaration and
possession.
24. Therefore, it is in this background we have to
appreciate the contentions of defendants 2 and 3 that a
mere order of attachment would not have the effect of
attaching the property. Only in the event of effecting
attachment in terms of Order 21 Rule 54 CPC, it would be
effective and alienations made subsequent thereto would
become void. According to defendants-2 and 3, though the
order of attachment was passed and proclaimed by beat of
drums, the copy of the order was not affixed at a
conspicuous place in the suit property and then upon a
conspicuous place of the Court House and also in the Office
of the Collector of the District in which the land is situated.
23
Therefore it is contended that the mandatory requirement of
Order 21 Rule 54 CPC is not complied with, thereby the
attachment is rendered invalid and consequently, the sale by
the judgment debtor in favour of the first defendant is a valid
sale.
25. In support of the above contention, several
judgments are relied upon. Before we look into these
judgments, it is necessary to look into the provisions of Code
of Civil Procedure dealing with attachment and sale of
immovable property.
26. Section 64 of Civil Procedure Code deals with
the effect of private alienations after attachment of the
immovable property and it reads as under:
“Section 64 Private alienation of
property after attachment to be void.-
(1) Where an attachment has been made, any
private transfer or delivery of the property
attached or of any interest therein and any
24
payment to the judgment-debtor of any debt,
dividend or other monies contrary to such
attachment, shall be void as against all claims
enforceable under the attachment.
[(2) Nothing in this section shall apply to
any private transfer or delivery of the property
attached or of any interest therein, made in
pursuance of any contract for such transfer or
delivery entered into and registered before the
attachment.
Explanation.- For the purposes of this
section, claims enforceable under an attachment
include claims for the rateable distribution of
assets.”
27. A reading of the aforesaid provision makes it
clear that if a private alienation is made subsequent to
passing of an order of attachment, such private alienation
shall be void as against all claims enforceable under the
attachment. In other words, the law declares such
alienation to be void and therefore there is no necessity for
25
any Court to declare such alienation as void. The object of
Section 64 is to prevent fraud on decree holders and to
secure the rights of attaching creditor against the attached
property by prohibiting private alienation pending
attachment. Mere passing of an order of attachment does
not ipso facto constitute attachment. It must be validly
effected by a procedure laid down in Order 21. The said
attachment creates no charge or lien upon the attached
property. There is nothing in any of the provisions of the
Code of Civil Procedure which, make the attaching creditor a
secured creditor or create any charge or lien in his favour
over the property attached. It only confers a right on the
decree-holder to have the attached property kept in custodia
legis for being dealt with by the court in accordance with
law. It merely prevents and avoids private alienation and
does not confer any title upon the attaching creditors. But
an attaching creditor acquires, by virtue of the attachment, a
right to have the attached property kept in custodia legis for
26
the satisfaction of his debt, and an unlawful interference
with that right constitutes an actionable wrong.
28. An attachment made under Order 21 Rule 54,
operates as a valid prohibition against alienation from the
date on which the necessary proclamation is made and a
copy of the order of attachment is affixed as provided by that
rule, and not from the date of the order of attachment.
Where the property is sought to be attached is transferred
and registered after attachment, the order of attachment
prevails over the transfer. The transactions, which fall in the
mischief of sub-section (1), are void as against all claims
enforceable under the attachment. A person, who claims
under a private transfer from the judgment-debtor after the
attachment, is not entitled to notice under Order 21 Rule 22,
as the decree holder is entitled to ignore all alienations
subsequent to the attachment.
27
29. Therefore, it is necessary to examine whether
the attachment has been made in accordance with Order 21
Rule 54 of CPC, which reads as under:
“54. Attachment of immovable
property:- (1) where the property is immovable
the attachment shall be made by an order
prohibiting the judgment-debtor from transferring
or charging the property in any way, and all
persons from taking any benefit from such
transfer or charge.
(1A) the order shall also require the
judgment-debtor to attend Court on a specified
date to take notice of the date to be fixed for
setting the terms of the proclamation of sale.”
30. Order 21 Rule 54 of CPC prohibits the judgment
debtor from transferring or creating charge on the property
attached in any manner and all persons from taking benefits
from such transfer or charge. As long as the order of
attachment is operating, no third party rights can be
created. The prohibition against the alienation of attached
property comes into operation from the date on which the
28
attachment is proclaimed. The privy council in the case of
A.T.K.P.L.M. MUTTHIAH CHETTY VS. PALANIAPPA
CHETTI AND OTHERS reported in AIR 1928 PC 139,
interpreting this provision held that no property can be
declared to be attached, unless firstly the order of
attachment is being made and secondly in the execution of
that order, other things prescribed in the rule in the Code
has been done. There must be first an order of attachment
and secondly in execution of that order the formalities
prescribed therein have to be complied with, i.e., there
should be a prohibitory order restraining a person from in
any way alienating the property sought to be attached. The
order of attachment will have to be proclaimed by beat of
drum or other customary mode. The order will also have to
be affixed on conspicuous part of the property and then
upon a conspicuous part of the Court house. For an order of
attachment to be effective, these conditions have to be
complied with. A mere order of attachment is therefore not
sufficient to invalidate the alienation made subsequent to
29
the order, but before the attachment is actually effected
pursuant to the order. The conditions laid down in the rule
are mandatory. If the mandatory provisions of Order 21 Rule
54 CPC are not complied with, there is no attachment that
prevents the parties from dealing with the property. The
essence of an order of attachment is to preclude the
judgment debtor from transferring his property. Until such
prohibition is publicized in the manner provided in the rule,
it cannot be said to have come into operation. In order to
create a valid attachment, those formalities must be
complied with. The purpose of the rule is to make the
judgment debtor aware that the attachment has been
effected and that he should not transfer the property
thereafter. Where this purpose is satisfied by an
undertaking by the judgment debtor not to alienate the
property and had been made part of the decree, an omission
to serve a formal order does not vitiate the attachment.
Therefore, the formalities, which should be complied with for
a valid attachment, are as under:
30
i) An order under sub Rule 1 of Rule 54, ordering
attachment of an immovable property is to be
made prohibiting the judgment debtor from
transferring or charging the property in anyway
and all persons from taking any benefit from
such transfer or charge.
ii) The order shall also require the judgment debtor
to attend the Court on a specified date to take
notice of the date to be fixed for settling the
terms of proclamation of sale.
iii) The order shall be proclaimed at the schedule
property or adjacent to the schedule property by
beat of drum or other customary mode.
iv) A copy of the order shall be affixed on a
conspicuous part of the property attached.
31
v) A copy of the order shall be affixed on a
conspicuous part of the Courthouse i.e., in the
court notice board.
vi) A copy of the order shall be affixed in a
conspicuous part of the Office in the Collector of
the District, in which the land is situated i.e., in
the notice board of the said Office.
vii) If the schedule property is situated in the village,
then a copy of the order shall be affixed on a
conspicuous part of the Gram Panchayat having
jurisdiction over that village i.e., in the notice
board of the Gram Panchayat.
31. Where there is evidence to show that the
property was duly attached, in the absence of any evidence
to the contrary, it may be presumed that all necessary
formalities are complied with. A presumption under Section
114 of the Evidence Act will come to the aid of the party, if
32
the party proves the fact that the judicial or official act has
been in effect is done or performed. All that the rule enjoins
is that the prohibitory order shall be proclaimed and affixed.
Therefore, it is wrong to say that an attachment is not
complete until service of the prohibitory order on the owner
of the property i.e., the judgment debtor. A copy of the
Courts’ prohibitory order must be affixed to a conspicuous
part of the Courthouse in very case and in the Office of the
Collector of the district in which the land attached is
situate and where the properties sought to be attached is
situated in a village, in the Office of the Gram Panchayat
having jurisdiction over that village. An alienation by the
judgment debtor is open to attack under Section 64 only
when it is established that there has been an order for
attachment and that pursuant to that order, the attachment
had been effected in the manner prescribed by the Court.
32. The learned counsel for the appellant has relied
on the judgment of the Madras High Court in the case of
33
SRI.KRISHNA CHIT FUNDS VS. R.S.PILLAI AND ANOTHER
reported in 2000(2) CTC 524. which is followed by the
learned Single Judge of this Court in MSA No.199/2011,
disposed of on 26.07.2012 and the judgment of the
Karnataka High Court in the case of THE INDIAN BANK,
BANGALORE VS. M/S.BLAZE & CENTRAL (P) LTD., AND
OTHERS reported in AIR 1986 Kar. 258, wherein it has
been held that, unless the legal requirement prescribed
under Order 21 Rule 54(2) is complied with, the attachment
would not be valid and the private alienation made
subsequent to the said attachment would not be rendered
void. Absolutely there is no qualms about the said
proposition of law. However, in those cases, firstly the
judgment debtor had filed an application for setting aside
sale on the ground of the same being vitiated because of
material irregularities. The material irregularities pointed out
was non compliance with the requirements of Order 21 Rule
54(2). It is in that context, it was held that the requirements
stipulated under Order 21 Rule 54(2) is mandatory in nature
34
and non compliance of the same would render the
attachment illegal and consequently, the private alienation
made subsequent to such attachment is void. Therefore,
those judgments are in conformity with what has been
discussed above. In the instant case, not only there is an
order of attachment, but the same is duly affixed on the
property, proclaimed near the schedule property and the
copy of the proclamation is published in the Courthouse as
well as in the Office of the Deputy Commissioner. In that
view of the matter, those judgments are of no assistance.
33. From the aforesaid discussion, it is clear that
not only an order of attachment is to be passed by the Court,
but in pursuance of the said order of attachment,
proclamation of attachment is to be affixed on the schedule
property and also the fact of having an order of attachment
being passed is proclaimed at or near the schedule property
by beat of drums or other customary modes. A copy of the
said proclamation is to be published in the Courthouse in
35
the Office of the Collector and if the property is situated in a
village, in the village panchayat office. Once these legal
requirements are complied with, then the order of
attachment is valid and Section 64 of the Civil Procedure
Code is attracted rendering all private alienations made
subsequent to the attachment void ab initio.
34. In the instant case, as set out above, the
evidence on record discloses passing of an order of
attachment, due publication of proclamation and affixture of
the same at the schedule property. It was also proclaimed
by beat of drums at the schedule property. The Mahazar
written and submitted to the Court by the Bailiff shows that
a copy of the proclamation was duly published in the Court
notice board as well as in the notice board of the Deputy
Commissioner. Therefore, all the legal requirements
prescribed under Order 21 Rule 54 has been complied with.
Therefore, the Courts below were justified in holding that the
sale deed dated 18-08-1983 executed by the judgment
36
debtor, T. Mareppa in favour of the 1st defendant is void.
Consequently, the sale deeds executed by the 1st defendant
in favour of the defendants 2 and 3 on 16.4.1992 did not
convey any title, as such, they have no manner of right, title
or interest over the schedule property.
POINT NO.2:
35. It was contented by defendants 2 and 3 that,
before purchase of the property, they made enquiries,
obtained the revenue records and encumbrance certificate,
but none of them disclosed the attachment in favour of the
plaintiff. It is only after making such enquiry they purchased
the property and therefore, they are bonafide purchasers for
valuable consideration, without notice of the attachment. It
is not in dispute that the defendants 2 and 3 purchased the
property during the pendency of the present suit. The sale in
favour of defendants-2 and 3 is hit by doctrine of lis
pendens. Section 52 of 5he T.P. Act which incorporates this
doctrine of lis pendens reads as under:-
37
“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 proceedings which is not collusive and
in which any right to immovable property is
directly and specifically in question, the property
cannot 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 any
decree or order which may be made therein,
except under the authority of the 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
38
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.”
36. The principle on which the doctrine rests was
spoken by Cranworth L.C. in the leading case of Bellamy
v.Sabine ((1857) 44 ER 842 at p. 843) as:
"It is scarcely correct to speak of lis
pendens as affecting a purchaser through the
doctrine of notice, though undoubtedly the
language of the Courts often so describes its
operation. It affects him not because it amounts to
notice, but because the law does not allow litigant
parties to give to others, pending the litigation,
rights to the property in dispute, so as to
prejudice the opposite party.
Where a litigation is pending between a
plaintiff and a defendant as to the right to a
particular estate, the necessities of mankind
required that the decision of the Court in the suit
shall be binding, not only on the litigant parties,
but also on those who derive title under them by
39
alienations made pending the suit, whether such
alienees had or had not notice of the pending
proceedings. If this were not so, there could be no
certainty that the litigation would ever come to an
end.
5. The Privy Council had adopted the same
principle in Faiyaz Husain Khan v. Munshi Frag
Narain ((1907) 34 Ind App 102) where they lay
stress on the necessity for final adjudication and
observation that otherwise there would be no
end to litigation and justice would be defeated.
6. Story in his work on Equity IIIrd Edition
para 406 expounded the doctrine of lis pendens
in the terms as follows;-
"Ordinarily, it is true that the judgment of
a court binds only the parties and their privies in
representations or estate. But he who purchases
during the pendency of an action, is held bound
by the judgment that may be against the person
from whom he derives title. The litigating parties
are exempted from taking any notice of the title
so acquired; and such purchaser need not be
made a party to the action. Where there is a real
40
and fair purchase without any notice, the rule
may operate very hardly, But it is a rule founded
upon a great public policy; for otherwise,
alienations made during an action might defeat
its whole purpose, and there would be no end to
litigation. And hence arises the maxim pendente
lite, nihil innovetur; the effect of which is not to
annul the conveyance, but only to render it
subservient to the rights of the parties in the
litigation. As to the rights of these parties, the
conveyance is treated as if it never had any
existence; and it does not vary them."
(emphasis supplied by us)
37. It is in this background, we have to decide
whether there is any conflict between the doctrine of lis
pendens enshrined in Section 52 of the Transfer of Property
Act and the rule availing a subsequent transferee without
notice contained in Section 19(b) of the Specific Relief Act,
for either of these should prevail.
41
38. The Full Bench of the Allahabad High Court in
the case of SMT RAM PEARY & OTHERS Vs. GAURI AND
OTHERS reported in AIR 1978 ALLAHABAD 318 has held
as under:
“7. In the light of these principles we have
got to consider whether in the event of a conflict
arising between the doctrine of lis pendens
enshrined in S, 52 of the Transfer of Property Act
and the rule availing a subsequent transferee
without notice, contained in Section 19(b) of the
Specific Relief Act either the one or the other
should prevail. Ordinarily, it is true that the title
acquired by the subsequent purchaser is good,
the sale to him being not void. But he who
pruchases during the pendency of the suit is
bound by the decree, that may be made against
the person from whom he derives title. The
litigating parties are exempted from the necessity
of taking any notice of a title so acquired (see
Samarendra Nath Sinha v. Krishna Kumar Nag
(AIR 1967 SC 1440)), As to the vendor and the
prior contractor it is as if no such title existed.
Section 52 places a complete embargo on the
transfer of any right to immoveable property
42
pending suit, which is directly and specifically in
question in such a litigation; it enacts that during
the pendency of the suit in which any right to
immoveable property is "directly and specifically
in question, the property cannot be transferred or
otherwise alienated by any party to the suit so as
to affect the rights of any other party thereto
under any decree."
Thus, in the present case it may be that the
subsequent transferee was entirely, ignorant of
any tight on the part of (SIC) contractor, and also
of the pen-(SIC) of the suit filed against the vendor
by such contractor, yet as the transfer was made
to him by the vendor after the institution of the
suit of the contractor and, while it was pending,
the subsequent purchaser cannot set up against
the contractor any right from which his vendor is
excluded by the decree. The title of the
subsequent purchaser is good against him on the
ground of breach of covenant, but against the
plaintiff contractor who seeks specific
performance of the contract against the vendor,
the subsequent transferee can be in no way
'better position than the vendor himself. It is well
43
settled that in a suit for specific performance of
contract in respect of immoveable property a right
to immoveable property is directly and
'specifically in question, (see Gauri Dutt Mahraj v.
Sheikh Sukur Mohammad ,(75 Ind App 165) : (AIR
1MB PC 147)).
As Story has put it in the passage above
quoted, the effect of the doctrine of lis pendens is
not to annul the conveyance but only to render it
subservient to the rights of the parties in the
litigation. The conveyance in favour of the
subsequent purchaser is treated as if "it never
had any existence". The conveyance in favour of
the subsequent purchaser thus yields to the
adjudication of the rights obtained by the
contractor, in the consequence of a decree
obtained against the vendor in a suit for specific
performance of the contract. In Durga Prasad v.
Deep Chand (AIR 1954 SC 75) (supra) their
Lordships were dealing with the form of the
decree in a suit directing specific performance of
contract between the vendor and the plaintiff and
in that connection, with a view to convey to the
plaintiff, without cancelling the subsequent sale,
44
they without enforcing the contract against the
subsequent purchaser, directed him to join in the
conveyance so as to pass on the title which
resided in him to the plaintiff. It was not a case
falling within the mischief of S, 52 of the T. P. Act.
In our opinion, therefore, when the doctrine
of lis pendens renders a transfer made during the
pendency of the suit subservient to the rights of
the plaintiff seeking specific performance of a
prior contract entered into by the vendor in his
favour and when 'on account of the operation of
the doctrine of lis pendens such conveyance is
treated as if it had never any existence, the
subsequent transferee, even though he had
obtained the transfer without notice of the original
contract, cannot set up against plaintiff-contractor
any right; for it would defeat the rule of lis
pendens which is founded upon public policy.
And considered in that manner, Section 52 of the
T. P. Act is not subject to S, 19(b) of the Specific
Relief Act.
8. We may yet arrive to a similar conclusion
in a different manner. "A judgment inter partes
45
raises an estoppel only against the parties to the
proceeding in which it is given, and their privies,
for example, those claiming or deriving title under
them." (Halsbury's Laws of England, Third
Edition, Volume 15, para 372). The transferee
pendente lite would be treated as a
representative in interest of the parties to the suit
and the judgment which has been pronounced, in
the absence of fraud and collusion, would have
the effect of finally determining the rights of the
parties and the cause of action which would
sustain the suit in which the doctrine of lis
pendens applied would be merged in the
judgment duly pronounced in what may be
described as the previously decided suit. The
decision being res judicata would bind not only
the parties thereto but also the transferees
pendente lite from them.
In a case to which besides the vendor the
subsequent transferee is also impleaded in the
array of the defendants, the judgment is final and
binding not only on the parties to the original
contract but also the transferee pendents lite from
vendor. The conveyance in favour of the
46
subsequent purchaser is treated as if it never had
any existence. There would then be no lis or
action, which would survive, enabling the
subsequent purchaser to take the defence of bona
fide transfer for value without notice of the
original contract. Accordingly, we take the view
that lis pendens affects the transferee pendente
lite and Section 52 of the T. P. Act is not subject to
Section 19(b) of the new Specific Relief Act. The
conveyance in favour of the subsequent
purchaser pending the suit brought by the
plaintiff contractor for! specific performance of the
contract between him and the vendor is taken "as
if it had never any existence."
39. In the case of BALWINDERJIT KAUR Vs.
FINANCIAL COMISSIONER (APPEALS), PUNJAB reported in
AIR 1987 PUNJAB AND HARYANA 189, it is held as under:
“3. … By now it is well laid down that in
the case of a transfer which is hit by the doctrine
of lis pendens under S. 52 of the Transfer of
Property Act the question of good faith which is
essential to be established before an equitable
relief can be granted in favour of a subsequent
47
vendee under section 41 or S. 51 of the Transfer
of Property Act is totally irrelevant (see Shanu
Ram v. Basheshar Nath (1966) 68 Pun LR (D) 44):
In the face of this settled legal position, the plea
raised on behalf of respondents 5 to 10 that they
were bona fide purchasers without notice from
Paramjit Singh and Jagjit Singh was obviously of
no consequence. Respondents 5 to 10 having
purchased the property from these two vendors
during the pendency of the civil litigation against
them are bound by the decree passed against
them, i.e., the vendors and, in view of that, no
question of title remained to be settled between
the parties, i.e., the petitioner and the subsequent
vendees.”
40. Section 52 of the T.P. Act places a complete
embargo on the transfer of any right to an immoveable
property pending suit, which is directly and specifically in
question in such a litigation. It enjoins that during the
pendency of the suit in which any right to immoveable
property is directly and specifically in question, the property
48
cannot be transferred or otherwise alienated by any party to
the suit so as to affect the rights of any other party thereto
under any decree. The conveyance in favour of the
subsequent purchaser is treated as if "it never had any
existence". The conveyance in favour of the subsequent
purchaser thus yields to the adjudication of the rights
obtained by the contracting party. Where a litigation is
pending between plaintiff and a defendant as to the right to a
particular estate, the necessities of mankind require that the
decision of the Court in the suit shall be binding, not only on
the litigating parties, but also on those who derive title
through them by alienations made during the pendency of
suit, whether such alienees had or not, the notice of pending
proceedings. If this were not so, there could be no certainty
that the litigation would ever come to an end. It is a rule
founded upon a great public policy. Otherwise, alienations
made during an action might defeat its whole purpose, and
there would be no end to litigation. Hence arises the maxim
pendente lite, nihil innovetur; the effect of which is not to
49
annul the conveyance, but only to render it subservient to
the rights of the parties in the litigation. As to the rights of
these parties, the conveyance is treated as if it never had any
existence; and it does not vary them.
41. A judgment inter partes raises an estoppel only
against the parties to the proceeding in which it is given, and
their privies, for example, those claiming or deriving title
under them. The transferee pendente lite would be treated as
a representative in interest of the parties to the suit and the
judgment which has been pronounced, in the absence of
fraud and collusion, would have the effect of finally
determining the rights of the parties and the cause of action
which would sustain the suit in which the doctrine of lis
pendens applied would be merged in the judgment duly
pronounced in what may be described as the previously
decided suit. The decision being res judicata would not only
bind the parties thereto but also the transferees pendente lite
from them. The title acquired by the subsequent purchaser
50
is good, the sale to him being not void. But he who
purchases during the pendency of the suit is bound by the
decree, that may be made against the person from whom he
derives title. The litigating parties are exempted from the
necessity of taking any notice of a title so acquired, as to the
vendor and the prior contractor as if no such title existed.
42. It is settled law that a person who purchases the
property, which is the subject matter of the litigation, from
the defendant during the pendency of the proceedings
cannot take up the plea of he being a bonafide purchaser.
Such a plea is not available to him, the reason being the
purchase made by him is subject to the result of the pending
suit. It is only when the vendor, who is a party to the suit,
succeeds in the suit, then it will enure to the benefit of the
purchaser. If the vendor loses, then the purchasers have no
independent right to defend their title on the ground of they
being a bonafide purchasers. Therefore, I do not see any
substance in the said contention.
51
43. For the aforesaid reasons, there is no merit in
this second appeal. Accordingly, the regular second appeal is
