Judgment:
(Prayer: Second Appeal is filed under S.100 of the CPC praying to set aside the judgment dated 23.3.2010 in RA 19/2005 by the I Addl. District Judge, Bangalore Rural District.)
Second appeal is by the defendant in OS 474/1994 who had filed a 'suit in OS 198/1991 before the trial court at Anekal for specific performance which had been decreed and ultimately in the appeals filed by the plaintiff as well as third party purchaser, both the appeals were dismissed. However, it appears, liberty is given to the third party purchaser to file an independent suit.â
Be that as it may, in the suit filed against the order of the first appellate court by the plaintiff which is concluded, decree was ordered in favour of the plaintiff. Meanwhile, plaintiff / third party purchaser in another proceedings in view of the liberty said to have been given, filed OS 494/1994 against the plaintiff in OS 198/1991 (1SI defendant herein) wherein he succeeded. However, in the appeal filed before the lower appellate court, the appeal came to be dismissed against which, parties are before this Court.
According to the original plaintiff who was the agreement holder in the year 1984 against the vendor, for specific performance of the same property filed a suit in the year 1991. Of course, according to the defendant, in the said suit, it appears, an exparte decree was passed. Despite that, when he filed an appeal against the order of the trial court decreeing the suit, in the first round of litigation, the appellate court also upheld the contention of the plaintiff, decreed the suit and confirmed the order of the trial court. However, in the peculiar circumstances on the basis of liberty granted by the first appellate court, the third party purchaser who had purchased the property before the decree was passed by the trial court in OS 198/1991, had also preferred an appeal immediately when he purchased the property just two months prior to the passing of the decree in favour of the plaintiff in OS 198/1991.
The main bone of contention taken by the plaintiff is, it is a collusive suit between his vendor and subsequent purchaser and the doctrine of lis pendens applies to the case and also pleaded that it acts as resjudicata on the judgment in question. According to him, the suit filed by the third party purchaser also amounts to resjudicata much less when the property is purchased during pendency of the matter before the civil court, it is hit by S.52 of the Transfer of Property Act. More over, as per the judgment of the Apex Court in the case of Us ha Sinha Vs Dina Ram and Ors - 2008 AIR SCW 28S3, purchaser pendente lite cannot raise obstruction to execution of decree and the doctrine of lis pendens prohibits a party from dealing with the property which is the subject matter of suit. Lis pendens itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit. R 102 of O 21, CPC clarifies that there should not be resistance or obstruction by a transferee pendent elite. However, the plea of the third party purchaser is, he is a bondafide purchaser for value without notice.â
It transpires, the conduct of the appellant herein is be was watching the proceedings sitting on the hedges and having failed, thereafter he preferred an appeal. Further, according to the plaintiff, the third party purchaser had knowledge of the pendency of the suit and he being a pendent elite purchaser, he has to be ousted from the court and the decree passed by the trial court and confirmed by the first appellate court has to be accepted.
According to the respondent's counsel, by virtue of the liberty given, the principle of resjudicata does not apply and also the question of lis pendens does not arise. Once again, on the point of lis pendens the Apex Court judgment is clear, So far as remedy under S. 19(b) of the Specific Relief Act is concerned, according to the counsel, there is a fraud and accordingly, it has to be set aside. On the other hand, appellant's counsel submitted, it is rather his vendor as well as the third party purchaser who have colluded and filed a suit and more over, the respondent herein also defended the case of this vendor which conduct itself shows that there is fraud on the part of the respondent in purchasing the property pendente lite though the agreement is entered into in the year 1984 whereas the respondent / third party purchaser purchased the property during 1991. Thus according to the appellant's counsel, it is rather the respondent himself who has suppressed the fact of pendency of the litigation and vendor of this appellant has sold the property in favour of the respondent and there is collusion and fraud played.
However, on the aspect whether the respondent has played fraud or whether the respondent and the vendor of the appellant have colluded together or whether the appellant and vendor of the appellant have colluded, the matter requires reconsideration in the absence of any such pleading by the respondent herein. Looking into the various factual situation and that this is the second round of litigation raised by the respondent herein and nearly after eight years of the agreement entered into by the appellant this respondent tried to get an interest created by entering into s sale transaction, the matter requires to be reconsidered by the first appellate court.
Accordingly, the order passed by the lower appellate court is set aside. Matter is remitted to the lower appellate court to consider all the aspects taking into consideration the judgment of the Apex Court cited supra, and other judgments relied upon by the counsel and also the factual position with regard to lis pendens is concerned. The matter shall be disposed of in three months on receipt of the records. Send back the records forthwith.
Appeal is allowed. Parties to bear their own costs in this appeal.