30 Jan 2022 12:02 PM GMT
The Andhra Pradesh High Court recently ruled that Section 52 of Transfer of Property Act, 1882 does not operate as a bar to grant of temporary injunction under Order 39 Rules 1 and 2, of Civil Procedure Code. Justice Ravi Nath Tilhari and Justice C. Praveen Kumar in common judgment observed that: "Section 52 of T.P. Act although provides protection to the parties from...
The Andhra Pradesh High Court recently ruled that Section 52 of Transfer of Property Act, 1882 does not operate as a bar to grant of temporary injunction under Order 39 Rules 1 and 2, of Civil Procedure Code.
Justice Ravi Nath Tilhari and Justice C. Praveen Kumar in common judgment observed that:
"Section 52 of T.P. Act although provides protection to the parties from transfers pendent lite, in as much as it makes such transfers subservient to the decree that may be passed in the suit, but it does not come in the way of passing an order of temporary injunction restraining alienation of the suit property during the pendency of the suit on the applicant satisfying all the three ingredients of prima facie, balance of convenience and causing irreparable loss or injury in his favour."
Brief Facts of the case
The plaintiff/1st respondent had filed a suit seeking decree for specific performance of the agreement of sale, dated 11.03.2014 against 1st defendant directing him to perform his part of the agreement by receiving the entire balance of sale consideration in respect of the suit schedule property. The plaintiff pleaded that he had always been ready and willing to perform his part of the contract.
During the pendency of the suit, the 1st Defendant alienated the suit schedule property in favour of other defendants who are the appellants herein.
Along with the plaint, the plaintiff/1st respondent also filed an application under Order 39 Rules 1 and 2 CPC for grant of interim injunction restraining anybody from alienation or encumbrance in respect of petition schedule property. The application was allowed by the Trial court.
The Civil Miscellaneous Appeals were then filed in the Andhra Pradesh High Court under Order 43 Rule 1 of Code of Civil Procedure challenging the judgment passed by District Judge allowing the interim injunction restraining the appellants/defendants from executing or creating any registered document of alienation.
The counsel for plaintiff contended that Section 52 of Transfer of Property Act (T.P. Act) is not a bar to the exercise of the power to grant temporary injunction under Order 39 Rules 1 and 2 CPC. If the defendants were not restrained by order of injunction from making any further alienation, they might execute further sale deeds in favour of third persons, giving rise to multiplicity of proceedings and causing irreparable loss and injury to plaintiff.
The counsel for defendants argued that in view of Section 52 of T.P. Act, they are within their right to sell the property even during pendency of the suit which right cannot be taken away by grant of temporary injunction.
Whether Section 52 of TP Act operates as a bar to the grant of temporary injunction under Order 39 Rules 1 and 2 CPC?
Section 52 incorporates the doctrine of lis pendens and stipulates that during pendency of any suit or proceeding in which any right to immoveable property is, directly or specifically, in question, the property, which is the subject matter of such suit or proceeding cannot be transferred or otherwise dealt with, so as to affect the rights of any other party to such a suit or proceeding. It is to maintain the status quo unaffected by the act of any party to the litigation pending its determination.
Order 39 Rules 1 and 2 deals with cases in which temporary injunction may be granted. It is a discretionary relief exercised by the courts.
The Andhra High Court discussed the laws of Section 52 T.P. Act and Order 39 Rules 1 and 2 CPC through various judgments to hold that distinction between the two is that an order of temporary injunction is pre-emptive in nature restraining the act of alienation by party to the suit where there is such a danger, whereas Section 52 T.P. Act comes into play after the alienation takes place during pendency of the suit. If an order of temporary injunction is passed and transfer is restrained, the question of applicability of Section 52 of T.P. Act will not arise as then there will be no transfer pending litigation.
In view of the primary object of grant of temporary injunction to maintain the status quo till the adjudication of the rights of the litigating parties, the Court held that Section 52 of TP Act does not operate as a bar to grant of temporary injunction under Order 39 Rules 1 & 2 CPC, in the discretion of trial court, on fulfillment of pre-conditions for grant of temporary injunction, restraining alienations as well. The court further held that the order of temporary injunction by District court does not suffer from any error of law or jurisdiction and therefore, did not exercise its appellate jurisdiction.
Case Title: K Ravi Prasad Reddy v. G Giridhar
Citation: 2022 LiveLaw (AP) 7
Click Here To Read/Download Judgment