K.Raja Vs. C.N.Kumar - Court Judgment

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :

19. 06.2014 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.No.3508 of 2012 M.P.No.1 of 2012 1. K.Raja 2. Baby Raja ... Appellants vs.

1. C.N.Kumar 2. Muthusamy Gounder 3. M.Balasubramaniam 4. P.Usharani 5. Sowmiyasankari 6. Periyasamy ... Respondents Civil Miscellaneous Appeals filed against the judgment and decree, made in E.A.No.29 of 2010 in E.P.No.29 of 2006 in O.S.No.69 of 2000, dated 04.07.2012, on the file of the I Additional District Court, Erode. For Appellant : M/s.Sarvabhauman Associates For 2nd Respondent : Mr.N.Anand Venkatesh

JUDGMENT

Being aggrieved by the order of dismissal on 04.07.2012, made in E.A.No.29 of 2010 in E.P.No.29 of 2006, filed under Order 21 Rule 58 of C.P.C., to release the petition mentioned properties, brought on sale from attachment, on the file of the 1st Additional District Judge, Erode, the present appeal has been filed. Parties are addressed, as per the litigative status in E.A.No.29 of 2010.

2. Facts in brief are as follows:- The petitioners are third parties. The 1st respondent is the decree holder. Respondents 2 to 6 are the judgment debtors in E.P.No.29/2006 in 0.S.No.13/2004. The 1st respondent/plaintiff has filed the said suit, as against respondents 2 to 5, for refund of the advance amount of Rs.10,80,000/-, on the basis of the sale agreement, dated 22.06.1995. Vide judgment and decree, dated 23.07.2004, the suit has been decreed, in favour of 1st respondent. The Court below has passed an order, directing respondents 2 to 6, to pay a sum of Rs.15,64,315/-, with subsequent interest, at the rate of 12% per annum. Respondents 2 to 6 have failed to pay the said decree amount and hence, the 1st respondent has filed an execution petition, as against respondents 2 to 6, for attachment of the petition mentioned property and for sale. The petition mentioned property in the execution petition is situated at Erode Taluk, Kollankovil village, in S.F.No.707/1 to an extent of punja acres 5.50, new R.S.No.114/1, punja hectors 0.02.5 and R.S.No.114/3 punja hectors 1.84.2, out of which, an extent of 3.92= punja acres with all other amenities.

3. The petitioners/claimants in E.A.No.29 of 2010 have contended that they have purchased the above mentioned property, from respondents 2 to 5/judgment debtors, on 18.09.2002 and that they are bonafide purchasers. According to them, at the time of execution of sale deed, no attachment was made, with respect to the petition mentioned property in the claim petition and hence, they have prayed the Court below, to release the petition mentioned property, from attachment and sale.

4. The 1st respondent/decree holder, in his counter statement, has stated that the petition mentioned property originally belonged to respondents 2 to 4 and one Pongiammal and they entered into a written sale agreement with 1st defendant/decree holder on 22.06.1995 and on the said date, they received a sum of Rs.5,00,000/-. According to the decree holder, since they have failed to execute the sale deed in his favour, he issued a notice to them on 04.06.1999. Then, he filed a suit against the said persons in O.S.No.69/2000, before the Sub Court, Erode and lateron, the suit was transferred to the file of District Court and renumbered as O.S. No.13/2004. Pending suit, one of the land owner Pongiammal, died intestate, leaving behind her legal heirs and therefore, the 6th respondent has been added as party to the proceedings. The 5th respondent was represented by her father, 3rd respondent, Balasubramaniam. Since the respondents 2 to 5 have not defended the matter, a decree has been passed in favour of the 1st respondent on 23.07.2004.

5. According to the 1st respondent, even after the decree passed in the suit, till the date of filing E.A.No.29 of 2010, respondents 2 to 6 have not challenged the decree obtained by him. Thereafter, he filed an execution petition in E.P.No.29 of 2006. In the execution proceedings also, respondents 2 to 6 remained exparte. It is the contention of the 1st respondent that once an agreement has been entered into between the parties, a charge is automatically created on the agreed property, for the prompt security for the amount paid, under the sale agreement. After knowing the decree, as well as the filing of the execution petition, respondents 2 to 6, in order to defeat his interest and prevent him, from realizing the decree amount, have fraudulently created a sale deed infavour of the petitioners, who are their close relatives. Hence, the 1st respondent has contended that the petitioners are not bonafide purchasers and for the abovesaid reasons, prayed for dismissal of E.A.No.29 of 2010.

6. Before the Court below, the 1st petitioner examined himself as PW.1 and examined one Palanisamy, as PW.2. On the side of the petitioner, Ex.P1  Encumbrance Certificate, to the petition mentioned property, Ex.P2  Certified copy of the sale deed, in favour of the petitioners, Exs.P3 to P6  Kist receipts standing in the name of the 1st petitioner, Ex.P7  Patta in the name of the 1st petitioner, Ex.P8  'A' Register Extract and Ex.P9  Certified copy of the counter statement in E.A.No.91 of 2009 in E.P.No.329 of 2005 in O.S.No.362 of 1997, on the file of the Additional Subordinate Judge, Erode, have been marked. On the side of the respondents, 1st respondent examined himself as RW.1 and marked Ex.R1  Certified copy of the plaint in O.S.No.69 of 2000 on the file of the Sub Court, Erode, Ex.R2  Certified copy of the petition in E.P.No.329 of 2005, in O.S.No.362 of 1997, on the file of the 1st Additional Subordinate Judge, Erode, Ex.R3  Certified copy of the petition and affidavit in E.A.No.411 of 2010, in E.P.No.329 of 2005 in O.S.No.362 of 1997, on the file of the First Additional Subordinate Judge, Erode, Ex.R4  Certified copy of F.S. Memo and Lodgment in E.P.No.329 of 2005 in O.S.No.362 of 1997, on the file of the 1st Additional Subordinate Judge, Erode and Ex.R5  Stamp receipt for Rs.80,000/- in E.P.No.209 of 1995, in O.S.No.679 of 1991, have been marked.

7. The lower Court has framed following questions for consideration, (i) Whether the claim petitioners are the bonafide purchasers?. (ii) Whether the decree holder is entitled to attach the petition mentioned property and bring into auction for sale?. (iii) to what relief the petitioners are entitled?.

8. Both sides have advanced arguments and to support rival contentions, they have relied certain decisions. They are extracted from the lower Court judgment, as follows: 9. On the side of the petitioner, they have submitted the following case laws:- (i) AIR1996SUPREME COURT2814in the Supreme Court of India in Special Leave Petition (Civil) No.14751 of 1996 in between Lourdu Mari David .v. Louis Chinnaya Arogiaswamy Justice K. Ramaswamy and Justice G.B. Pattanaik delivered judgment on 09.08.1996 and observed as follows:- ".Specific Relief Act (47 of 1963), S. 20 - Scope Agreement to sell - Person claiming specific performance not coming with clean hands - Property purchased by bona fide purchaser for value without notice - Equitable relief of decree for specific performance could not be granted.". (ii) 2009 (1) CTC803in the High Court of Madras in A.S.No.907/1989 in between K.R. Venugopal .v. K.R. Srinivasan and others, Justice K. Kannan delivered judgment on 30.10.2008 and observed as follows:- ".Bona fide subsequent purchaser Determinative factors - (1) Payment of entire sale consideration, (2) no notice of agreement of sale, and (3) enquiry about character of possession of person in possession - However, issue of bona fides of purchaser relevant only to make a comprehensive decision of all relevant issues and when Plaintiff fails to prove readiness and willingness and establish his case, bona fides of subsequent purchaser need not be doubted. (iii) 2002 (4) CTC291in the High Court of Madras in S.A.No.532 and 533 of 1992 in between Sundaram Ammal .v. V.Gowriammal, Justice K.Govindarajan delivered judgment on 07.08.2002 and observed as follows:- ".Specific Relief Act, 1963, Section 19 - Bona fide Purchaser of property - Owner of suit property entered into agreement with his tenant in respect of suit property for sale of suit property - Subsequently owner entered into another agreement with plaintiff for sale of same property and during negotiations owner represented to plaintiff that first defendant was in possession of suit property as tenant - Plaintiff purchase property and later filed suit for declaration of title and recovery of possession - Plaintiff had stated in her reply notice that character of possession of first defendant was that of tenant - Plaintiff pleaded ignorance of subsisting earlier agreement - First defendant not alleging in notice that plaintiff had purchased suit property with full knowledge about previous agreement - Plaintiff is bona fide purchaser as she had made enquiries regarding character of possession of suit property by first defendant and plaintiff is bona fide purchaser.". (iv) 1997 (II) CTC417in the High Court of Madras in A.S.No.795 of 1983 and C.M.P.Nos. 1486 and 1855 of 1997 in between Amirtham .v. Subian and others, Justice K.Govindarajan delivered judgment on 02.09.1997 and observed as follows:- ".Specific Relief Act, 1963 Section 16(c), 19 and 20 - Relief of Specific Performance - Readiness and willingness to perform has to be judged with reference to conduct of parties and attendant circumstances - Relief of Specific Performance is equitable relief and party ?.^eeking Specific Performance should come to court with clean hands - Equitable relief of Specific Performance cannot be granted to party coming forward with false case and facts.".

11. On the side of the 1st respondent he has submitted the following authorities:- (i) (2009) 2 MLJ949(SC) in the Supreme Court of India in C.A.No.6764 of 2001 in between Guruswamy Nadar .v. P. Lakshmiammal (died) through L.Rs., and others, Justice A.K. Madur and Justice Lokeshwar Singh Panta, delivered judgment on 0105.2008 and observed as follows:- 'Transfer of Property Act (4 of 1882), Sections 52 - Specific Relief Act (47 of 1963), Sections 16,19 - Agreement of sale - Suit for specific performance filed - Subsequent second sale - Purchase by second sale - Affected by doctrine of lis pendens - Second purchaser defendant in the suit - Readiness and willingness, of plaintiff.". (ii) 2010 (1) MLJ Page 556 in the High Court of Madras in C.R.P.(NPD) No.93 of 2009 & M.P.No.1 of 2009 in between V.P.S. Viswanathan .v. Sri Raja Yarns Traders, Justice S. Palanivelu delivered judgment on 26.10.2009 and observed as follows:- 'Transfer of Property Act (4 of 1882), Section 53 - Order of attachment - Petition against order of attachment - There is no need for the creditor to file separate suit to decide that the transfer by the judgment - debtor is fraudulent transaction - Filing Execution Petition, taking steps for attachment and sale of the and ob property, would indicate that he exercised his option as required under Section 53 of the Transfer of Property Act - Since respondent has levied execution proceedings for attachment and sale of property, he satisfied statutory requirements as adumbrated in Section 53 of T.P. Act - Neither judgment - debtor nor transferee has shown good faith in the transaction and that it was supported by valuable consideration which would also attract provisions of Section 53 - No infirmity either there must legally or factually in the impugned order - Revision petition dismissed.". (iii) 2010 (2) T.N.C.J.

666 in the High Court of Madras in C.R.P.(NPD) N0.1162 of 2009 and M.P.No.1 of 2009, in between Venkatesh .v. M. Dhavamani and others, Justice M.Venugopal delivered judgment on 15.06.2010 and observed as follows: Civil Procedure Code, 1908- Order 41, Rule 5 - Transfer of Property Act, 1982 - Section 52 - Petitioner not party to pending suit, while pending suit purchased a portion of suit property under sale deeds - Trial Court holding the lis pendens purchaser cannot question about division of allotment made by Advocate Commissioner, dismissed the suit- Revision Petition against - Held, purchaser of pendente lite is bound by the result of suit - Refusal of stay in present case by First Appellate Court under Order 41, Rule 5, CPC does not suffer from material irregularity or patent illegality - Hence, Civil Revision petition fails.". (iv) 2001 (3) MLJ Page 155 in the High Court of Judicature at Madras in C.R.P.No.2739 of 2000 and C.M.P.No.14537 of 2000 in between Radhakrishnan .v. Vinayaka Chits, Justice N.V. Balasubramanian, delivered judgment on 24.06.2001 and observed as follows:- ".Civil Procedure Code (V of 1908), Sec.51, 0.21, Rules 64,66 and 90 Settlement of sale proclamation - Properties brought to sale - Not attached prior to sale - It is a mere irregularity- Sale not vitiated- Cannot be set aside. 9. The decision considered by the Court below, while dismissing E.A.No.29 of 2010, is as follows: ".2010 (5) CTC580in the High Court of Madras in C.M.A.No.3184 of 2008, C.R.P.Nos. 3521 of 2008 and 1414 of 2009 and connected M.Ps., in between S. Ravikumar .v. R.M. Manivasagam, Justice R. Subbiah, delivered judgment on 06.08.2010 and observed as follows:- ". Transfer of Property, 1882 (4 of 1882), Section 53 - Code of Civil Procedure, 1908 (5 of 1908), Order 21, Rule 58(1) & (3) - Fraudulent Transfer - Adjudication of claims and objections to attachment of property - Plaintiff filed Suit for recovery of money - Suit decreed in favour of Plaintiff - Plaintiff filed Execution Petition for attachment of property - Subsequent to filing of Execution Petition, Defendants executed registered Settlement Deed in favor theirions - Sons of Defendants filed Execution Application under Order 21, Rule 58(1) & (3), C.P.C. Objecting attachment of properties - Held : Settlement Deed executed by Defendants in favor of their sons after filing of Execution Petition would clearly show fraudulent intention of Defendant to defeat bona fide claim of Plaintiff - Settlement Deed executed by Defendant in favor of their sons is hit by Section 53 of Transfer of Property Act.".

10. Sections 52 and 55 of the Transfer of Property Act, considered by the Courts below, are extracted hereunder: 52. 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 proceeding 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 of order which may be made therein, except under the authority of the court and on such terms as it may impose.". Explanation: 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 untill the suit or proceeding has been disposed by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become 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.

55. The seller is bound - (a) to disclose to the buyer and material defect in the property (or in the seller's title thereto) or which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover; (b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller's possession or power; (c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto. 11. After considering the pleadings and submissions, the Court below has passed the following orders, 12. There is no doubt a decree was passed by a competent court infavour of the 1st respondent and also there is no doubt on perusal of the decree copy the above suit was filed on 07.06.1999 on the file of the Principal Subordinate Judge Court, Erode and also there is no doubt the judgment debtors namely, Muthusamy Gounder, 2nd respondent herein, Balasubramaniam, 3rd respondent, Mani Selvi @ Sowmiya Sankari represented by her father Balasubramaniam executed a sale deed in favour of the claimants on 18.09.2002. Therefore, the petition mentioned property in the claim petition was purchased by the claimants from the judgment debtors during the pendency of the suit.

13. ..........

14. On perusal of this case records, it is found that the vendor of the entering into the sale deed with the claimants, the vendors entered into a sale agreement with the 1st respondent not only to the petition mentioned property but also to some other property. Therefore, on the date of execution of sale deed infavour of the claimants the sellers are having knowledge that they were already entered into a sale agreement with the 1st respondent. But they may purposely suppressed the above facts to the buyer or after knowing the sale agreement the claimants may entered the sale with the respondents 2, 3 and 5. Thereby, the Rule of 'Caveat Emptor' (=let the purchaser beware) is attract in this case. A purchaser should make inspection and inquiry as to the physical condition of the property which he is proposing to buy and, if he omits to do so, he cannot afterwards complain of defects of which he could have informed himself with proper diligence. Patent defects in property are thus within the rule of Caveat Emptor.

15. ........

16. In this case, the 1st respondent filed a suit on the basis of sale agreement with the respondents 2 to 6 with regard to the properties which includes the property which was mentioned in the claim petition. The 1st respondent has not only seeking the recovery of advance amount, but also seeking a prayer for charge over the property. The above suit was filed on 07.06.1999 in a competent court, but the claimant purchased the property on 18.09.2002. Therefore, it is a cristal clear case that the claimants purchased the property pendent lite. 12. Ultimately, the Court below has dismissed E.A.No.29 of 2010 in E.P.No.29 of 2006, to release the petition mentioned properties, brought on sale from attachment. Against which, the petitioners have filed this appeal.

13. Assailing the correctness of the abovesaid order made in E.A.No.29 of 2010 in E.P.No.29 of 2006 in O.S.No.69 of 2000, dated 04.07.2012, learned counsel for the appellant submitted that the Court has erred in dismissing the petition filed under Order 21 Rule 58 CPC., to release the petition mentioned properties, on the erroneous presumption that, the suit filed by the 1st respondent is one for specific performance and therefore, hit by principle of lis pendens.

14. Inviting the attention of this Court to the prayer sought for by the plaintiff that it was for a direction to the defendants to pay the plaintiff/respondent, a sum of Rs.15,64,315/- with subsequent interest of Rs.10,80,000/- at the rate of 12% per annum, from the date of suit, till the date of payment, learned counsel for the appellant further submitted that the suit is only for recovery of money and not for specific performance.

15. It is also her contention that the though the plaintiff has sought for a direction, to create a charge over the plaint schedule property, which is the subject matter of the sale agreement, dated 22.06.1995, as laid under Section 55(6)(b) of the Transfer of Property Act, the Court below has disallowed the prayer for attachment, sought for in E.A.No.29 of 2010 in E.P.No.29 of 2006. She therefore submitted that when the 2nd prayer sought for, in the suit in O.S.No.69 of 2000, has been rejected, the Court below ought to have released the property from attachment.

16. Learned counsel for the appellant also contended that the trial Court has erred in brushing aside Exs.P3 to P6 - Kist Receipts which stood in the name of K.Raja. She also contended that the Court below has failed to consider that the appellants were not aware of the pendency of the suit and that there was no encumbrance. They were in possession, right from the year 2002, by having the revenue records mutated in their favour. It is also her contention that when other properties are available for realising the decree amount, application in E.A.No.29 of 2010 in E.P.No.29 of 2006, ought to have been ordered. In this context, she placed reliance on a decision of the Apex Court in Thomson Press (India) Ltd., v. Nanak Builders and Investors Pvt. Ltd., reported in 2013 (5) SCC397 17. Per contra, Mr.N.Anand Venkatesh, learned counsel appearing for the respondents submitted that the suit was instituted in the year 2000, on the file of the learned Subordinate Judge, Erode, for, (1) directing the defendants to pay the plaintiff/respondent, a sum of Rs.15,64,315/- with subsequent interest of Rs.10,80,000/- at the rate of 12% per annum, from the date of suit, till the date of payment; and (2) creating charge over the plaint schedule property, which is the subject matter of the sale agreement, dated 22.06.1995, as laid under Section 55(6)(b) of the Transfer of Property Act, for due payment of the aforesaid amount with costs.

18. Inviting the attention of this Court to the order passed in I.A.No.1105 of 2011 in O.S.No.69 of 2000, dated 29.11.2001, learned counsel for the respondent submitted that pending disposal of the suit, an injunction restraining the defendants from alienating the petition mentioned properties, or encumbering the same, till the suit claim is fully settled, has been ordered by the Court and till date of filing of the present appeal, the injunction continued. But knowing fully well that there was an injunction, against the defendants, the petition mentioned properties have been sold to the petitioners in E.A.No.29 of 2010 in E.P.No.29 of 2006.

19. Taking this Court through the impugned order, learned counsel for the plaintiff/respondent submitted that as per the Rule of ".Caveat Emptor, the purchaser ought to have exercised proper care and diligence. Placing reliance on a decisions made in Surjit Singh v. Harbans Singh reported in AIR1996SC135 Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund reported in 2007 (13) SCC565and Arjan Singh v. Punit Ahluwalia reported in 2008 (8) SCC348 he submitted that the purchase made by the petitioners in E.A.No.29 of 2010 in E.P.No.29 of 2006, was during the pendency of the suit and particularly, when an injunction order was in force and therefore, it is hit by principles of lis pendens and hence, submitted that the defendants/appellants cannot be said to be bona fide purchasers, entitled to the release of the properties from the sale. For the abovesaid reasons, he prayed for dismissal of the appeal. Heard the learned counsel for the parties and perused the materials available on record.

20. Material on record, discloses that the defendants 2 to 5 in O.S.No.69 of 2000, have entered into a sale agreement, dated 22.06.1995, with the respondents in this appeal, for sale of the petition mentioned properties. The defendants have failed to execute the sale deed. Pending disposal of the suit, one of the plaintiffs died and therefore, the legal representative has been impleaded as defendant No.6. Pending disposal of the suit, I.A.No.1105 of 2001 in O.S.No.69 of 2000, has been filed against defendants 1, 3 and 5 for an injunction, restraining them from alienating the petition mentioned properties, or encumbering the same, till the suit claim is fully settled.

21. The respondents therein did not file any counter and remained ex parte. Hence, vide order, dated 29.11.2001, the lower Court has granted interim injunction, till the disposal of the suit. In the said suit, the plaintiffs/respondents have sought for another prayer, for a direction to create a charge over the plaint schedule property, which is the subject matter of the sale agreement, dated 22.06.1995, as laid under Section 55(6)(b) of the Transfer of Property Act, for due payment of the aforesaid amount.

22. Perusal of the judgment made in O.S.No.69 of 2000, shows that while granting a decree, directing the respondents therein to pay a sum of Rs.15,64,315/- with subsequent interest of Rs.10,80,000/- at the rate of 12% per annum, from the date of suit, till the date of payment, the Court below has disallowed the prayer for creating charge over the plaint schedule property, as the property had already been attached in the previous proceedings initiated by the bank. It is only in the said circumstances, the charge over the property sought for, by the plaintiff/respondent, has not been granted.

23. However, the injunction granted not to encumber or alienate, continued againt the defendants, till the disposal of the suit. Perusal of the impugned order shows that upon perusal of Ex.R2 - Certified copy of the petition in E.P.No.329 of 2005 in O.S.No.362 of 1997, on the file of the First Additional Subordinate Judge, Erode, Ex.R3 - Certified Copy of the petition and affidavit in E.A.No.411 of 2011 in E.P.No.329 of 2005 in O.S.No.362 of 1997, on the file of the First Additional Subordinate Judge, Erode, Ex.R4 - Certified Copy of the F.S.Memo and Lodgment in E.P.No.329 of 2005 in O.S.No.362 of 1997, on the file of the First Additional Subordinate Judge, Erode and Ex.R5 - Stamp receipt for Rs.80,000/- in E.P.No.209 of 1995 in O.S.No.679 of 1991, issued by the Advocate for the decree holder, the Court below has observed that the decree holder/1st respondent has paid the decree amount to the State Bank of India, on behalf of the defendants 2 to 6. Thus, it could be seen that during the pendency of the suit in O.S.No.69 of 2000, instituted by the 1st respondent/decree holder, there was an order of attachment of the petition mentioned property by the State Bank of India and when a Execution Petition has been filed by the Bank, the 1st respondent/decree holder has paid the decree amount.

24. No sooner, the 1st respondent/decree holder has paid the amount in the execution petition, instituted by the State Bank of India, he is entitled to seek for recovery of money, under the judgment and decree in O.S.No.13 of 2004, dated 23.07.2004. As stated supra, vide order, dated 29.11.2001, in I.A.No.1105 of 2001, there is an order of injunction, not to encumber and alienate. Despite the same, the defendants have entered into a sale agreement on 18.09.2002.

25. Let me now consider the decisions relied on by the learned counsel for the parties.

26. In Surjit Singh v. Harbans Singh reported in AIR1996SC135 a suit for partition for separate possession of the properties was filed. A preliminary decree was passed. When the proceeding for passing a final decree was pending, the parties moved for accounting and preservation of mense profits. The trial court passed an order, restraining all the parties from alienating or otherwise transferring in any manner any part of the property involved in the suit. One of the parties assigned his rights under the preliminary decree, by a registered deed, partly in favour of his wife and partly in favour of others, in the teeth of the restraint order of the trial court. On the basis of the assignment deed, the assignees made an application under Order 22 Rule 10 C.P.C., requiring the trial court to permit their impleadment as parties to the proceedings in the suit. The trial court granted the prayer of the assignees. When the aggrieved party challenged the same, on appeal, before the Additional District Judge, he failed. The High Court also dismissed the revision petition in limine. Hence, they filed an appeal before the Apex Court. Dealing with the said situation, the Apex Court, at Paragraph 4, held as follows: ".In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prelavent public policy, When the Court intends a particular state of affairs to exist while it is in seizin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes. Once that is so, Pritam Singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees-respondents could not have been impleaded by the trial court as parties to the suit, in disobedience of its orders. The principles of lis pendens are altogether on a different footing. We do not propose to examine their involvement presently. All what is emphasised is that the assignees in the present facts and circumstances had no cause to be impleaded as parties to the suit. On that basis, there was no cause for going into the question of interpretation of paragraphs 13 and 14 of the settlement deed. The path treaded by the courts below was, in our view, out of their bounds. Unhesitatingly, we upset all the three orders of the courts below and reject the application of the assignees for impleadment under Order 22 Rule 10 C.P.C. For the foregoing reasons, we allow this appeal with costs. ".

27. In Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund reported in 2007 (13) SCC565 while considering a case, when there were mandatory and prohibitory injunctions, but the parties acted in breach thereof, the Hon'ble Supreme Court, at Paragraph 13, observed as follows: ".13. The courts below appeared to have taken note of the entries made in the revenue records wherein the name of the Municipal Corporation, Belgaum appeared in respect of CTS No.4823/A-1. We have, however, noticed that the learned Trial Judge proceeded on the basis that the said property may be belonging to the defendants appellants. The courts below not only passed a decree for prohibitory injunction but also passed a decree for mandatory injunction. The High Court opined that the Trial Court could exercise discretion in this behalf. It is again one thing to say that the courts could pass an interlocutory order in the nature of mandatory injunction in exercise of its jurisdiction under Section 151 of the Code of Civil Procedure on the premise that a party against whom an order of injunction was passed, acted in breach thereof; so as to relegate the parties to the same position as if the order of injunction has not been violated, but, it is another thing to say that the courts shall exercise the same power while granting a decree permanent injunction in mandatory form without deciding the question of title and/or leaving the same open. How, in the event the structures are demolished, it would be possible for the appellants to work out their remedies in accordance with law in regard to the title of the property has not been spelt out by the High Court. ".

28. In Arjan Singh v. Punit Ahluwalia reported in 2008 (8) SCC348 the Supreme Court has reiterated the decision made in Surjit Singh v. Harbans Singh reported in 1995 (6) SCC50 Reverting back, placing reliance on a decision in Thomson Press (India) Ltd., v. Nanak Builders and Investors Pvt. Ltd., reported in 2013 (5) SCC397 the learned counsel for the appellant submitted that the transaction effected, pending disposal of the sue, would not be illegal, nor void abinitio. In the said reported judgment, the question that was considered by the Hon'ble Apex Court, was in a suit for specific performance, whether the purchaser, pendent lite, has a right to implead in the suit, and defend the transaction, was the moot question and answered by the Supreme Court. After considering a plethero of decisions and statutory provisions, particularly, Section 19 of the Specific Performance Act and Section 52 of the Transfer of Property Act, the Hon'ble Supreme Court, at Paragraphs 39 and 53, held as follows: ".39. As discussed above, a decree for specific performance of a contract may be enforced against a person claimed under the plaintiff, and title acquired subsequent to the contract. There is no dispute that such transfer made in favour of the subsequent purchaser is subject to the rider provided under Section 52 of the Transfer of Property Act and the restrain order passed by the Court.

53. There is, therefore, little room for any doubt that the transfer of the suit property pendete lite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the plaintiff in the pending suit. Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent Court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent Court may issue in the suit against the vendor.

29. Though the appellant has relied on the judgment in Thomson Press's case in their favour, on the question of purchase, pendent lite, the Hon'ble Supreme Court considered the following decisions, ".40. The aforesaid question was considered by the Calcutta High Court in the case of Kafiladdin and others vs. Samiraddin and others, AIR1931Calcutta 67 where Lordship referred the English Law on this point and quoted one of the passage of the Book authored by Dart, on".Vendors and Purchasers". Edn.8, Vol.2, which reads as under :- ".Equity will enforce specific performance of the contract for sale against the vendor himself and against all persons claiming under him by a title arising subsequently to the contract except purchaser for valuable consideration who have paid their money and taken a conveyance without notice to the original contract.". Discussing elaborately, the Court finally observed:- ".The statement of the law is exactly what is meant by the first two clauses of S.27, Specific Relief Act. It is not necessary to refer to the English cases in which decrees have been passed against both the contracting party and the subsequent purchaser. It is enough to mention some of them : Daniels v. Davison (2), Potters v. Sanders (3), Lightfoot v. Heron(4). The question did not pertinently arise in any reported case in India; but decrees in case of specific performance of contract have been passed in several cases in different forms. In Chunder Kanta Roy v. Krishna Sundar Roy (5) the decree passed against the contracting party only was upheld. So it was in Kannan v. Krishan (6). In Himmatlal Motilal v. Basudeb(7) the decree passed against the contracting defendant and the subsequent purchaser was adopted. In Gangaram v. Laxman(9) the suit was by the subsequent purchaser and the decree was that he should convey the property to the person holding the prior agreement to sale. It would appear that the procedure adopted in passing decrees in such cases is not uniform. But it is proper that English procedure supported by the Specific Relief Act should be adopted. The apparent reasoning is that unless both the contracting party and the subsequent purchaser join in the conveyance it is possible that subsequently difficulties may arise with regard to the plaintiff's title.".

41. The Supreme Court referred the aforementioned decision of the Calcutta High Court in the case of Durga Prasad and Another v. Deep Chand and others, AIR (1954) SC75 and finally held:- ".In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special convenants made between plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in ".Kafiladdin v. Samiraddin, AIR1931Cal 67 (C) and appears to be the English practice. See Fry on Specific Performance, 6th Ed. Page 90, paragraph 207; also ".Potter v. Sanders"., (1846) 67 ER. We direct accordingly.".

40. Again in the case of Ramesh Chandra v. Chunil Lal (1971) SC1238 this Court referred their earlier decision and observed:- ".it is common ground that the plot in dispute has been transferred by the respondents and therefore the proper form of the decree would be the same as indicated at page 369 inDurga Prasad and Another v. Deep Chand and others, AIR (1954) SC75 viz., ".to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff".. We order accordingly. The decree of the courts below is hereby set aside and the appeal is allowed with costs in this court and the High Court.".

30. At Paragraph 26 of the judgment, after extracting Section 52 of the Transfer of Property Act, the Hon'ble Supreme Court held that, It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this Section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation. 31. On the abovesaid principles, the Hon'ble Supreme Court in Thomson Press's case (cited supra), considered the following judgments, 27. Discussing the principles of lis pendens, the Privy Council in the case of Gouri Dutt Maharaj v. Sukur Mohammed & Ors. AIR1948PC147 observed as under: The broad purpose of Section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in bona fide proceedings. To apply any such test is to misconceive the object of the enactment and in the view of the Board, the learned Subordinate Judge was in error in this respect in laying stress, as he did, on the fact that the agreement of 8.6.1932, had not been registered. 28. In the case of Kedar Nath Lal & Anr. v. Ganesh Ram & Ors. AIR1970SC1717 this Court referred the earlier decision in Samarendra Nath Sinha v. Krishna Kumar Nag (1967 (2) SCR18 and observed: The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so it must bind the person driving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holder vs. Monohar 15 I.A. 97 where the facts were almost similar to those in the instant case. It is true that Section 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.(See Nilkant v. Suresh Chandra 12 I.A.171 and Moti Lal v. Karrab-ul-Din 24 I.A.170). 26. The aforesaid Section 52 of the Transfer of Property Act again came up for consideration before this Court in the case of Rajender Singh & Ors. v. Santa Singh & Ors. AIR1973SC2537and Their Lordship with approval of the principles laid down in Jayaram Mudaliar v. Ayyaswami, 1973 (1) SCR139reiterated: The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the courts power to decide a pending dispute of frustrate its decree. Alienees acquiring any immovable property during a litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property which are the subject matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated. 32. Hon'ble Mr. Justice T.S.Thakur, supplementing the judgment, has observed as follow: 47. ....The first and foremost is that the appellant was aware of the agreement to sell between the plaintiff and the defendants in the suit. Publication of a notice in the Hindustan Times, Delhi Edition, and the legal notice which Living Media India Limited, appellants sister concern, sent to the defendants indeed left no manner of doubt that the appellant was aware of a pre-existing agreement to sell between the plaintiff and the defendants. It is also beyond dispute that the sale of the suit property in favour of the appellant was in breach of a specific order of injunction passed by the trial Court. As a matter of fact, the sale deeds executed by the defendants falsely claimed that there was no impediment in their selling the property to the appellant even though such an impediment in the form of a restraint order did actually exist forbidding the defendants from alienating the suit property. The High Court was in that view justified in holding that the sale in favour of the appellant was a clandestine transaction which finding has been rightly affirmed in the order proposed by my Esteemed Brother, and if I may say so with great respect for good and valid reasons.

48. In the light of the above finding it is futile to deny that the specific performance prayed for by the plaintiff was and continues to be enforceable not only against the original owner defendants but also against the appellant their transferee. Sale of immovable property in the teeth of an earlier agreement to sell is immune from specific performance of an earlier contract of sale only if the transferee has acquired the title for valuable consideration, in good faith and without notice of the original contract. That is evident from Section 19(b) of the Specific Relief Act which is to the following effect: 19.Relief against parties and persons claiming under them by subsequent title  Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against  (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; There is thus no gainsaying that the appellant was not protected against specific performance of the contract in favour of the plaintiff, for even though the transfer in favour of the appellant was for valuable consideration it was not in good faith nor was it without notice of the original contract.

49. The second aspect which the proposed judgment succinctly deals with is the effect of a sale pendente lite. The legal position in this regard is also fairly well settled. A transfer pendente lite is not illegal ipso jure but remains subservient to the pending litigation. In Nagubai Ammal & Ors. v. B. Shama Rao & Ors. AIR1856SC593 this Court while interpreting Section 52 of the Transfer of Property Act observed: The words so as to affect the rights of any other party thereto under any decree or order which may be made therein"., make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto. 50. To the same effect is the decision of this Court in Vinod Seth v. Devinder Bajaj (2010) 8 SCC1where this Court held that Section 52 does not render transfers affected during the pendency of the suit void but only render such transfers subservient to the rights as may be eventually determined by the Court. The following passage in this regard is apposite: 42. It is well settled that the doctrine of lis pendens does not annul the conveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will not therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit. 51. The decision of this Court in A. Nawab John & Ors. v. V.N. Subramanyam (2012) 7 SCC738is a recent reminder of the principle of law enunciated in the earlier decisions. This Court in that case summed up the legal position thus: 18 ..The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject- matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court. 52. We may finally refer to the decision of this Court in Jayaram Mudaliar v. Ayyaswami and Ors. (1972) 2 SCC200in which were extracted with approval observations made on the doctrine of lis pendens in Commentaries of Laws of Scotland, by Bell. This Court said: 43..Bell, in his commentaries on the Laws of Scotland said that it was grounded on the maxim: Pendente lite nibil innovandum. The Hon'ble Judge has observed: It is a general rule which seems to have been recognised in all regular systems of jurisprudence, that during the pendence of an action, of which the object is to vest the property or obtain the possession of real estate, a purchaser shall be held to take that estate as it stands in the person of the seller, and to be bound by the claims which shall ultimately be pronounced. 53. There is, therefore, little room for any doubt that the transfer of the suit property pendete lite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the plaintiff in the pending suit. Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent Court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent Court may issue in the suit against the vendor. 33. Though the learned counsel for the appellant relied on a decision in Thomson Press's case (cited supra), to contend that the transaction between the defendants and third party claim petitioners, is not void ab initio, needless to state that the Apex Court in the above catena of decisions, has reiterated that such transactions would be circumvent to the rights of that contracting parties.

34. Admittedly, the sale between the defendants and the third party claim petitioners, had taken place, when the injunction was in force. The defendants have admittedly breached the order of injunction, granted on 29.11.2001, in I.A.No.1105 of 2001, by executing a sale deed, dated 18.09.2002, to the appellants/petitioners, which is nothing but a clandestine act to defeat the said decree.

35. As regards the contention that the appellants/petitioners have effected mutation of the records and that they have been enjoying the property, by paying kists, as per the decision in Narain Prasad Aggarwal v. State of M.P., reported in 2007 (11) SCC736 record of right is not a document of title. Entries made therein in terms of Section 35 of the Indian Evidence Act, although are admissible as a relevant piece of evidence and although, the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable.

36. In Gurunath Manohar Pavaskar and Ors., v. Nagesh Siddappa Navalgund & Ors., reported in AIR2008SC901 following Narain Prasad Aggarwal's case, the Supreme Court held that a revenue record is not a document of title. It merely raises a presumption as regards possession. Presumption of possession and/or continuity thereof, both forward and backward, can also be raised under s.110 of the Evidence Act.

37. Therefore, even taking it for granted that, subsequent to the sale deed, dated 18.09.2002, the appellants had effected mutation of records and paid kist receipts, Exs.P3 to P6 and that the patta has been changed under Ex.P7 and consequently, there was also a entry in 'A' Register, still, the sale pendente lite, is subsequent to the order of injunction and as held in Thomson Press's case, would be circumvent to the rights of the contracting parties, in O.S.No.13 of 2004, on the file of the Principal Subordinate Judge, Erode.

38. Though the learned counsel for the appellants contended that the suit in O.S.No.13 of 2004, was not for specific performance and therefore, the petition mentioned property ought to have been released from the attachment of sale, this Court is not inclined to accept the same, for the reason that the decree holder is entitled to seek for attachment and sale of petition mentioned properties, for realising the decree amount. In the light of the above discussion, this Court is not inclined to interfere with the impugned order.

39. In the result, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed. 19.06.2014 Index: Yes S. MANIKUMAR, J.

skm To The Ist Additional District Court, Erode. C.M.A.No.3508 of 2012 19.06.2014