Transfer Of Property Act | Purchasers During Pendency Of Suit Bound By Decree Of Specific Performance: Bombay High Court

The Bombay High Court stated that the purchasers during pendency of suit bound by the decree of specific performance.The Bench of Justice Madhav J. Jamdar observed that “the doctrine of lis pendens show that the need for it arises from the very nature of the jurisdiction of the Courts and their control over the subject matter of litigation so that parties litigating before it may not remove any part of the subject matter outside the power of the Court to deal with it and thus make the proceedings infructuous.”In this case, an application was filed by the Original Plaintiff i.e. Respondent No.1 under Order XXI Rule 97 of the Code of Civil Procedure, 1908 for removal of obstructionists i.e. Appellants from the suit property and seeking prayer that vacant and peaceful possession of the suit property be handed over to the Respondent No.1. By Order, the Executing Court allowed the said Application and rejected the objection of the obstructionists.The said Judgment and Decree of the Executing Court has been challenged by the obstructionists by filing Regular Civil Appeal. Both the appeals were dismissed by the judgment passed by the District Judge, Pune. The appellants submitted that the decree of specific performance is not sufficient to elevate the Decree Holder to the status of an owner, it merely recognizes a claim for specific performance of contract which is capable of being specifically enforced at the instance of a Decree Holder and no steps available in law has been taken to elevate the Respondent No.1 to the status of an owner. In absence of these actions the Decree Holder will have no right, title and interest in the suit property.The respondent submitted that as the Appellants have purchased the portion of suit property during pendency of the Suit their purchase is governed by Section 52 of the TP Act and therefore the said transactions are pendente lite. Thus, the decree of specific performance is also binding on them.Referring to various cases the bench observed that the transactions on the basis of which the Appellants are claiming right, title and interest are covered by the doctrine of lis pendens as per Section 52 of the TP Act. Consequently, said transactions are subservient to the decree which has been passed. The Appellants have failed to prove any independent right, title and interest and therefore not entitled to obstruct the decree.The transactions on the basis of which the Appellants are claiming right in the subject property, have been admittedly executed after the filing of the Suit. Although the said transactions are not annulled by the decree of specific performance, the same are subservient to the rights of parties to a litigation and subservient to the decree which has been passed, added the bench.The bench stated that “it is settled legal position that the principle of lis pendens enshrined in Section 52 of the TP Act is the principle of public policy. Although the mere pendency of a Suit does not prevent parties dealing with the property constituting the subject matter of the suit, what is contemplated by Section 52 is 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 and then in that case, the same will be subject to the conditions put up by the Court.”The purpose of lis pendens is to ensure that the process of the court is not subverted and rendered infructuous. In the absence of the doctrine of lis pendens, a defendant could defeat the purpose of the Suit by alienating the suit property, stated the bench.In view of the above, the bench dismissed the appeal.Case Title: Alka Shrirang Chavan & Anr. v. Hemchandra Rajaram Bhonsale & Ors.Case Number: SECOND APPEAL NO.396 OF 2022Counsel for Appellants: Nikhil Sakhardande, Senior Advocate a/w Siddhesh Bhole, Ashish Venugopal, Ashwin Pimpale i/b SSB Legal and Advisory, for the AppellantsCounsel for Respondent: Rajanish BhonsaleClick Here To Read/Download Order

Transfer Of Property Act | Purchasers During Pendency Of Suit Bound By Decree Of Specific Performance: Bombay High Court

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