ORDER
1. Heard the arguments of learned counsel on both sides.
2.1. The only question of law that arises for determination in this revision is: whether the purchase of the house properly of the judgment-debtor named P. K. Attavar (hereinafter called 'JDr. Attavar') in Ex. Case No. 787/81, made by (he petitioner Smt. B. V. Vasantha (hereinafter called the 'auction purchaser') on 28-6-1982 at the auction sale is hit by the principle of lis pendens?
2.2. This question stands answered by the Court-below in the affirmative by its impugned order dated June 20, 1988 passed in Ex. Case No. 693/82 rejecting the auction purchaser's objection therein to execution of the decree for specific performance of the contract of sale that was obtained by the respondents-Decree Holders therein (hereinafter referred to as the plaintiffs') against the JDr. Attavar in respect of the said house property. The legality of this finding of the Court-below stands challenged by the auction-purehaser.
3.1. The undisputed material facts bearing on the question are as follows :
Plaintiffs filed the suit in O. S. No. 2/77 in the Court-below against JDr. Attavar for the decree of specific performance on the basis of a registered agreement dated 21-3-1975 pleading that by that agreement the latter having agreed to sell his said house property to Ihe plaintiffs for the price stated therein, failed to perform his part of the contract and, therefore, the decree may be passed against him directing him to execute the sale deed in respect of the said house by accepting the balance of sale consideration of Rs. 20,000/- and to put them in possession of the house. That suit was decreed expert on 31-5-1977. But, curiously, instead of drawing the valid and correct decree of specific performance following the trial Court's judgment, a wrong decree i.e.. mortgage decree, was drawn up by it. After the wrong decree was so drawn up, the said amount of Rs. 20,000/- was deposited by the plaintiffs in the trial Court and Ihe same was withdrawn by them some time thereafter. But the defective decree was allowedto stand without they seeking its rectification till 4-12-1982.
3.2. In the meantime another suit in O.S. No.47/1978 was filed in the Court-below on 30-6-1978 against JDr. Attavar by the Karnataka Bankfor recovery of the loan amount from him on thebasis of a promissory note. The said suit ishereinafter referred to as the 'Banks's suit'. Duringpendency of that suit the said house property wasgot attached therein by the plaintiff Bank on 23-11-1978. That suit also came to be decreed by thetrial Court on 4-2-1980. Then the plaintiff-Hank(Dhr.) put the said decree into execution in Ex.Case No. 787/81 and brought the said house ofJDr. Attavar to sale towards the realisation of thedecretal amount. The said bouse was, then, dulypurchased by the auction purchaser in Courtauction sale held on 28-6-1982 for Rs. 65.101/-and the sale was confirmed in her favour by theexecuting Court on 29-7-1982 and the salecertificate was also issued to her on 8-9-1982.The bid amount of Rs. 65,100/- was deposited byher in the executing Court out of which thedecretal amount of Rs. 36, 316-41 was withdrawnby the DHr. Bank and the balance amount of Rs.28,783-59 was withdrawn from the Court by JDr.Attavar.
3.3. Thereafter the auction purchaser made application under 0.21, R. 95, C.P.C. before the Court-below in Misc. Case No. 77/82 along with necessary applications seeking delivery of the said house purchased by her, by directing opening of its lock with the police help. The photostat copy of the certified copy of the order-sheet in Misc. Case No. 77/87 produced by the learned counsel for auction purchaser discloses that the order for delivery of the house to her as prayed was passed by the Court-below on 14-8-1982. Accordingly, Ihe delivery warrant was duly executed by the Court Bailiff and she was put in actual possession of the house on 15-9-1982 and a report to this effect was submitted by him to the Court. After possession of the house was so delivered to her JDr. Attavar filed his so-called objections statement on 25-9-1982 praying to redeliver its possession to him as the said decree dated 31-5-1977 for specific performance in respect of that house was was already passed in plaintiff's favour in ihe said O.S. No. 2/77, the application was rejected by the Court-below as untenable.
3.4. The plaintiffs (respondents herein) in the said O.S. No. 2/77, thereafter, applied to the trial Court on 11-11-1982 for rectification of the said defective decree dated 31-5-1977 and accordingly the rectification was made substituting the said wrong decree with the correct decree for specific performance of the contract. Then, on 18-12-1982 execution petition was filed by them before the trial Court against JDr. Attavar in Ex. Petition No. 693/82 seeking execution of the decree by depositing the balance of sale consideration of Rs. 20,000/-. During pendency of the execution proceedings, on 30-1-1984, auction purchaser made an application under O.I.R. 10, C.P.C and got herself impleaded as JDr. No. 2 and filed her objection-statement resisting the execution proceedings on the ground that the said house was bona fide purchased by her at the auction sale held in the said Ex. Case No. 787/81 on 28-6-1982. The Court-below has, by its impugned order, rejected her objection holding that the doctrine of lis pendens under Sec. 52 of the Transfer of Property Act, 1982 ('the Act' for short) was applicable and operated against her purchase of the said house, since it was purchased by her before the decree of specific performance under execution was fully discharged or executed.
4. Learned counsel for auction purchaser (petitioner), Mr. R.Gopal, assailed the impugned order on two grounds. Firstly, the house property having been purchased by the auction purchaser at Court auction sale and it being an alienation not by act of parties but by operation of law, Sec. 52 of the Act would not be applicable in view of the saving clause (d) contained in Sec. 2 thereof: Nexlly. that on the relevant date i.e. on 28-6-1982, when the properly was purchased by the auction purchaser at the Court sale, the plaintiffs in O.S. No. 2/77 were not holding any valid and executable decree so as to have its binding effect on the auction purchaser by virtue of the principle of lis pendens embodied under Sec. 52 of the Act. Reliance was placed by him on the following authorities in support of these contentions :
(i) Jayaram Mudliar v. Ayyaswami, : [1973]1SCR139 .
(ii) B. R. Rangaswamy v. Uppari Gowda, 1962 Mys LJ 384 : AIR 1962 Mys 189.
(iii) Mt. Wali Bandi Bibi v. Mt. Tabeya Bibi, AIR 1919 All 320,
(iv) Mt. Indrani v. Maharaj Narain .
(v) Raj Raj Bahadur Singh v. Shaniraju, AIR 1942 Oudh 226.
(vi) Abid Hussain v. Mrs. R. K. Paul, : AIR1961AP508 .
5. Mr. Rama Bhat. learned counsel for plaintiffs (respondents) argued upholding the validity of the order impugned. Mr. Bhat repelling the contentions of Mr. R, Gopal, proposed to place reliance on the proposition of law declared by Supreme Court in the case of Jayaram Mudaliar v. Ayyaswami and others, supra, that there is no longer any controversy regarding the applicability of the principle of his pendent to the Court sales also.
6. As regards the first objection raised for the auction purchaser, no doubt Sec. 2(d) exempts applicability of the Act, save as provided by Sec. 57 of Chapter IV thereof, to any transfer by operation of law or any execution of decree or order of a Court of competent jurisdiction; but the Supreme Court has expounded the legal proposition regarding applicability of the principle of lis pendens to such purchase transactions, in Samarendra Nath Sinha v. Krishna Kumar Nag, : [1967]2SCR18 , as under at page 1445 :
'It is true that Sec. 52 strictly speaking does not apply to involuntary alienations such as Court sales but it is well established that the principle of lis pendens applies to such alienations. (Sec Nilkand v. Suresh Chandra. (1885) 12 IA 171 and Motilal v. Karrabuldin, (1897) 24 IA 170).
This statement of law is reiterated by Supreme Court in its subsequent decisions in Kedar Nath Lal v. Ganesh Ram : [1970]2SCR204 and in Jayaram Mudaliar v. Ayyaswami supra. The Division Bench of this Court in M/s. Chitaleye Brothers_v. Santo Indian Bank, : AIR1988Kant59 following the law laid down by Supreme Court in Kedarnath Lal, supra, declared the earlier contrary view of its single Bench taken in Syndicate Bank v. Pundalika Nayak, ILR (1986) KarII 3776 as obiter dicta and has observed :
'The auction purchaser who purchased the property which was brought to sale in execution of a money decree obtained by another, during pendency of the mortgage suit in respect of thesame property, was bound by the decree passed in the pending suit.'
Therefore, the contention of Mr. Gopal that by virtue of the 'Saving Clause' of Section 2 of the Act, Section 52 thereof becomes inapplicable to the purchase of the property by third party in auction sale held in execution of a money decree during pendency of the plaintiff's suit for specific performance with respect thereto, assuming it to be pending at the time of purchase, is unacceptable; it being the settled law that doctrine of lis pendens does apply to auction sales held by the executing Court of any immoveable property to judgment-debtor which was subject of dispute in a pending suit.
7. Let me now consider the second objection raised by the learned Counsel for petitioner against validity of the impugned order. He maintained that the purchase of the property by auction-purchaser on 28-6-1982 cannot be held as hit by rule of lis pendens since the decree dated 31-5-1977 passed in the said O.S. No. 2/77 was an illegal and invalid decree, which had no binding effect on the said purchase for valuable consideration and without notice made by the auction-purechaser, and that subsequent rectification of that decree does not enure to the benefit of the plaintiffs (Dhrs.) as against him. In support of this objection the aforementioned authorities were relied on by Mr. R. Gopal.
8. I find sufficient legal force in this contention of Mr. R. Gopal. As already indicated, the trial Court's judgment in plaintiffs' suit for specific performance in O.S. No. 2/77 had crystallised into the said illegal mortgage decree dated 31-5-77. For the reason too obvious this decree was a nullity. Plaintiffs being the holder thereof, it necessarily follows that they had its knowledge which fact gets confirmed from the admitted fact that they had deposited the balance sale consideration of Rs. 20,000/- in the court-below within the priod of two months stipulated under the said decree and thai that amount was withdrawn by them sometime later. In law, the said void decree did not create and was not capable of creating or declaring the plaintiff's right to purchase the suit properly. Curiously they allowed such a void decree to exist till 4-12-1982 when they got the same rectified by the trial Court. ft transpires from the relevant material onrecord that there was absolutely no justificationfor the plaintiffs to sleep over the matter till 11-11-1982 when they made their application underSection 152, C.P.C. seeking amendment of thesaid void decree dated 31-5-77. Thus, in thecontext, it is manifested that they have deliberatelyallowed the auction-purchaser to purchase thesaid property on 28-6-1982 for valuableconsideration in the Bank's Execution case No.787/82. There is no material, whatever, broughton record by plaintiffs disclosing that thepurchaser had any notice of their said suit or thevoid decree dated 31-5-1977 passed therein. Norcould she be imputed with constructive notice ofthe said registered contract of sale dated 21-3-1975 between plaintiffs and JDr. since thatdocument being not compulsorily registrable fallsoutside the purview of Explanation to S. 3 of theAct, when the property was purchased by her atauction sale on 28-6-1982, followed byconfirmation on 29-7-1982 and issuance of salecertificate on 8-9-1982. Therefore, it becomesclear that the auction-purchaser is a bona fidepurchaser for value without notice and that shepurchased the property before the said void decree dated 31-5-1977 was got amended or rectified bythe plaintiffs. So the material point that arises fordecision is whether or not in such a situation thepurchase of properly by her is hit by the doctrineof lis pendens.
9. The effective answer to this point dependsupon the effect of rectification or amendment ofthe said decree made subsequent to purchase ofthe property by the auction-purchaser. If it is heldthat such rectification of decree made on 24-11-1982 relates back to the original date of the exparte decree i.e. 31-5-1977, and the decree sorectified retrospectively operated against auction-purchaser with effect from the original date i.e.31-5-1977, then undoubtedly the purchase of theproperty made by her at the said auction salewould be bound by the rule of lis pendens sinceit operates so long as the decree remainsunsatisfied or undischarged and in that case theimpugned order of the Court below would beentitled to be upheld. On the other hand, if it is tobe found that intervening interest in the propertyacquired by the auction-purchaser, who purchasedthe property for valuable consideration andwithout notice remains unaffected, for, as on thedate of its purchase i.e. 28-6-1982, the plaintiffs'right to purchase the property was not declared or created under the said void decree dated 31-5-1977, then obviously the principle of lis pendens embodied in S. 52 would not be attracted and applicable to the said purchase made by her.
10. The aforementioned decisions relied on by Mr. R. Gopal, learned Counsel for petilioner, throw sufficient light on this legal aspect of the matter. The Supreme Court in Jayaram Mudaliar v. Ayyasvvami. supra has held at page 581 :
'The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the properly to which claims are put forward' (para 50)
11. As regards question concerning effect of the subsequent amendment of the pleadings or a decree on the intervening interest of an innocent purchaser of immovable property involved in legal proceedings, the same came up for consideration of a Division Bench of Allahabad High Court in Mt. Wali Bandi v. Mt. Tabeya Bibi, reported in AIR 1919 Allahabad 320, where it has held at page 322 :
'An Amendment of the plaint by a change in the description of the property i,n suit would not for the purpose of the rule of lispendens, relates back to the date of the institution of the suit.'
The same question had arisen for consideration of a Division Bench of the High Court of Oudh in Raj Raj Bahadur Singh v. Shatranjai, AIR 1942 Oudh 226. Relying on its earlier decisions reported in AIR 1934 Oudh 352 and , the High Court of Oudh has laid down :
'Persons not parties to the amendment are not bound thereby and as regards them the amendment takes effect from the date it is made and not the date of the decree.'
It has further held :
'All persons who are not parties to the action and who have acquired interests based on the existing state of the judgment and decree, acting in good faith and being purchasers for valuable consideration without notice, actual or implied, of the existence of the mistake in the judgment and decree evidence of which has been supplied by the amendment, are not prejudiced thereby unless they have been accorded a hearing and the Court has determined that they have no such equities as to entitle them to be exonerated of theeffect of amendment' (Head note (g))
11.2. The aforequoted legal propositions enunciated by the High Courts of Allahabad and Oudh arc followed by this Court in B; R. Rangaswamy v. Uppari Gowda, 1962, Mys IJ 284 : (AIR 1963 Mysore 1893. In that case it was contended by learned Counsel for appellant that as soon as the pleading is amended it relates back to the filing of the plaint and, therefore, acquisition of interest by any third party in the immoveable property in dispute in the suit would attract applicability of the rule of lis pendens. Repelling this contention the Court has observed at page 189 :
'The rule embodied in S. 52 is a rule of expediency. That rules has been enacted with a view to protect the parties who are litigating in a Court in respect of certain immoveable properties. Legal title acquired by third parties cannot be put to the risk of being defeated by parties to a pending suit, by amending their pleading and including the properly purchased by such third parties. It is a settled principle of law that in order to attract the doctrine of lis pendens the property in suit must be described with sufficient precision. If there is such misdescription of the property as its identity cannot be established the doctrine of lis pendens cannot apply. The Courts have consistently taken the view that if by a subsequent amendment certain properly is included in a plaint and before that amendment had been made newly included property had already been purchased by a bona fide purchaser for value without notice of defect of title the doctrine of lis pendens will have no application to such a case.'
The same view has been taken by the High Court of Andhra Pradesh in Abid Hussain v. R. K. Paul, : AIR1961AP508 . Discussing the question of applicability of doctrine of lis pendens to a purchase by a bona fide purchaser of a properly which was the subject of a legally defective decree, the learned Judge has held at page 510 :
'5. From the above, the following emerge :
Firstly, that though a correction could be made under S. 152, Civil Procedure Code at any time, such a thing is possible only as long a interests of third parties do not intervene; secondly any inertia on the part of a person asking for the amendment should not be tolerated when the third parties acquire interests, though it is necessary that the third parties should have acted in good faith without the knowledge of the defective decree.
When these elements could be found in a case, there is no gainsaying that, on the principles of equity, an exception to the rule contained in S. 152, C.P.C. has been made operative by judicial dicta. It may. therefore, be said that the power of correction or amendment conceded by S. 152, C.P.C. is not so oblivious of considerations of equity, arising in the case of third persons who have acquired rights.'
(Underlining supplied)
I respectfully agree with this dictum of thelearned Judge.
12. From the aforementioned pronouncements of Supreme Court and of various High Courts the legal position which clearly emerges is that the doctrine of lis pendens does not operate and would be inapplicable in the ease of purchase by an innocent purchaser or the immovable property which is the subject of an existing illegal or inexcusable decree and that its amendment or rectification made subsequent to his purchase does not enure to the benefit of the decree-holder as against him, to which amendment proceeding he was not a party. The same legal principle operates in respect of amendment of the pleadings in a suit made concerning any immoveable properly which was already purchased by a third party in good faith for valuable consideration and without notice.
13. In the cast on hand the plaintiffs had remained callous and indifferent in seeking rectification of the said void decree dated 31-5-1977 and the material on record demonstrates that they and the JDr, as well appear to have deliberately allowed the auction-purchaser to purchase the property during existence of that illegal decree of which he had no knowledge, whatsoever. Plaintiffs had not acquired under the said decree any right to purchase the property in question. The decree in its present form was inexecutable and the trial Court had no power to deal with the properly under the same. The auction-purchaser was not bound by the subsequently rectified/amended decree since he was not a parly to that amendment proceeding.Therefore, the considerations of equity require protection of interest of the intervening auction-purchaser of the property when pitted against the plaintiffs' claim to the right to purchase the same under the said void decree. In the facts and circumstances of the case, the doctrine of lis pendens cannot be held operative against the purchase of the said property by the auction-purchaser.
13.2. The question that had arisen for determination is answered accordingly. Therefore, the contrary view taken by the Court below in its impugned order is unsustainable in law and it is liable to be reversed. Hence, the revision deserves to be allowed.
14. For the reasons aforesaid, the revision is allowed. The impugned order dated June 20, 1988 passed in Ex. case No. 693/82 of the Court below is set aside and the petitioner's (auction-purchaser's) objection to the execution of the decree in Ex. case No. 693/82 on its file is upheld. The execution proceeding in the said execution case No. 693/82 is dismissed. The L.Rs. of deceased respondents 1 and 2 (plaintiffs) are at liberty to pursue their legal remedy against respondent No. 3-JDr. No. 1, for recovery of damages sale consideration paid to him under the said contract of sale dt. 21-3-1975, subject of course to the law of limitation.
In the circumstances, parties to bear their own costs.
15. Revision allowed.