It was also submitted on behalf of the appellants that the expression in
section 52 of the T.P. Act “suit or proceedings” is also applicable to the
applications. An application seeking extension of time is also a proceeding within
the meaning of the said provision and appeal filed is also continuation of the suit or
proceedings but comes within the meaning of the proceedings. The legislative
intent behind the amendment of section 52 was not only to cover the suit but also
to cover appeals and proceedings and same would include all applications/appeals
under the CPC. An application under Order 9 Rule 9 would also be covered within
the meaning of the expression suit or other proceedings to which the doctrine of lis
pendens would apply. It was also submitted that section 52 prior to amendment
prohibited transfer made during the “active prosecution” of a suit. Section 52 of the
Transfer of Property Act, embodies the rule of lis pendens, which prior to its
amendment only prohibited a transfer made during the “active prosecution” of a
suit or a proceeding in which any right to immoveable property was directly and
specifically in question. The expression “active prosecution”, which existed in the
section before its amendment in 1929, led to much uncertainty in the application of
the rule, and caused a divergence of judicial opinion. It was felt that the standard
of diligence, which would constitute “active prosecution”, could not be defined
with precision. To remove this uncertainty, the law was amended in 1929, and the
Amending Act XX of 1929 substituted the word “pendency” for the phrase “active
prosecution”; and there can now be no difficulty in deciding whether the transfer
was made during the pendency of a suit or proceeding. In Parmeshari Din v. Ram
Charan & Ors. AIR 1937 PC 260, it was held :
“2. It is clear that the question of the active prosecution of a suit is
one of fact, but it was not suggested in either of the Courts in India
that the plaintiffs had not actively prosecuted the suit, and were
consequently debarred from availing themselves of the rule of lis
pendens. The learned Judges of the Court of Appeal had, therefore, no
opportunity to express their opinion on this point; and their Lordships
cannot entertain an objection, which depends upon a question of fact
not dealt with below. Upon the record before them, there is no
indication of any delay or remissness in the prosecution of the suit, for
which the plaintiffs can be held responsible. Their Lordships,
therefore, agree with the High Court that the transfer relied upon by
the appellant cannot prejudice the rights of the decree-holders, and
that he cannot resist the decree obtained by them.”
The abovesaid principle of law settled in the year 1937 by the Privy Council
is still valid as discerned from the latest judgment of this Court rendered in the
case of Kirpal Kaur v. Jitender Pal Singh & Ors. (2015) 9 SCC 356 :
“21. The execution of the alleged gift deed by the deceased first
defendant in favour of the second defendant is also hit by
Section 52 of the Transfer of Property Act, 1882, as the said deed was
executed during the pendency of the proceedings and before the
expiry of the period of limitation for filing SLP. Further, during the
pendency of these proceedings, the second defendant, who has
claimed to be the alleged beneficiary of the suit Schedule “B”
property on the basis of alleged gift deed should have sought leave of
this Court as the donee and brought the aforesaid fact of execution of
the alleged gift deed in respect of “B” schedule property by the
deceased first defendant, which property has been devolved in his
favour, to the notice of this Court as provided under Order 22
Rule 10 of the CPC and defended his right as required under the law
as laid down by this Court in a catena of cases.
x x x x x
26. The legality of the alleged gift deed executed in favour of the
second defendant by the deceased first defendant in respect of the
Schedule 'B' property has been further examined by us and the same is
hit by Section 52 of the Transfer of Property Act, 1882, in the light of
the decision of this Court in the case of Jagan Singh v. Dhanwanti
(2012) 2 SCC 628, wherein this Court has laid down the legal
principle that under Section 52 of the Transfer of Property Act, 1882,
the 'lis' continues so long as a final decree or order has not been
obtained from the Court and a complete satisfaction thereof has not
been rendered to the aggrieved party contesting the civil suit. It has
been further held by this Court that it would be plainly impossible that
any action or suit could be brought to a successful termination if
alienations pendente lite were permitted to prevail.”
wherein the factum of the alleged gift deed was not made known to the
Court. This has been extrapolated in the case of Jagan Singh (dead) through LRs.
v. Dhanwanti & Anr. (2012) 2 SCC 628 thus :
“32. The broad principle underlying Section 52 of the TP Act is to
maintain the status quo unaffected by the act of any party to the
litigation pending its determination. Even after the dismissal of a suit,
a purchaser is subject to lis pendens, if an appeal is afterwards filed,
as held in Krishanaji Pandharinath v. Anusayabai AIR (1959) Bom
475. In that matter the respondent (original plaintiff) had filed a suit
for maintenance against her husband and claimed a charge on his
house. The suit was dismissed on 15.7.1952 under Order 9 Rule 2, of
the Code of Civil Procedure 1908, for non-payment of process fee.
The husband sold the house immediately on 17.7.1952. The
respondent applied for restoration on 29.7.1952, and the suit was
restored leading to a decree for maintenance and a charge was
declared on the house. The plaintiff impleaded the appellant to the
darkhast as purchaser. The Appellant resisted the same by contending
that the sale was affected when the suit was dismissed. Rejecting the
contention the High Court held in para 4 as follows:
“..In Section 52 of the Transfer of Property Act, as it stood
before it was amended by Act 20 of 1929, the expression
‘active prosecution of any suit or proceeding’ was used. That
expression has now been omitted, and the Explanation makes it
abundantly clear that the 'lis' continues so long as a final decree
or order has not been obtained and complete satisfaction thereof
has not been rendered. At p. 228 in Sir Dinshah Mulla's
"Transfer of Property Act", 4th Edn., after referring to several
authorities, the law is stated thus:
“Even after the dismissal of a suit a purchaser is
subject to 'lis pendens', if an appeal is afterwards filed.”
If after the dismissal of a suit and before an appeal is
presented, the 'lis' continues so as to prevent the defendant
from transferring the property to the prejudice of the plaintiff, I
fail to see any reason for holding that between the date of
dismissal of the suit under Order 9 Rule 2 of the Civil
Procedure Code and the date of its restoration, the 'lis' does not
continue.”
33. It is relevant to note that even when Section 52 of TP Act was
not so amended, a Division Bench of Allahabad High Court had
following to say in Moti Chand v. British India Corpn. Ltd. AIR
(1932) All 210:
‘10, ….The provision of law which has been relied upon
by the appellants is contained in Section 52, TP Act. The active
prosecution in this section must be deemed to continue so long
as the suit is pending in appeal, since the proceedings in the
appellate court are merely continuation of those in the suit
…’(see Gobind Chunder Roy v. Guru Churn Kurmokar ILR
1988 15 Cal. 94).”
34. If such a view is not taken, it would plainly be impossible that
any action or suit could be brought to a successful termination if
alienations pendente lite were permitted to prevail. The Explanation to
this section lays down that the pendency of a suit or a proceeding shall
be deemed to continue until the suit or a proceeding is disposed of by
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.
35. In the present case, it would be canvassed on behalf of the
respondent and the applicant that the sale has taken place in favour of
the applicant at a time when there was no stay operating against such
sale, and in fact when the second appeal had not been filed. We would
however, prefer to follow the dicta in Krishanaji Pandharinath AIR
1959 Bom 475 to cover the present situation under the principle of lis
pendens since the sale was executed at a time when the second appeal
had not been filed but which came to be filed afterwards within thePage 36
36
period of limitation. The doctrine of lis pendens is founded in public
policy and equity, and if it has to be read meaningfully such a sale as
in the present case until the period of limitation for second appeal is
over will have to be held as covered under Section 52 of the TP Act.”
31. The doctrine of lis pendens would be applicable even to the proceedings in
the nature of an appeal as has been emphasized in the case of Krishanaji
Pandharinath v. Anusayabai AIR 1959 Bom 475 thus :
“3. It is true that in this case the sale effected by Sidram was after
the dismissal of the suit filed by Anusayabai and before the suit was
restored, but the alienation being before, the final decree or order was
passed and complete satisfaction or discharge of the decree was
obtained, it must be regarded as pendente lite. In s. 52 of the Transfer
of Property Act, as it stood before it was amended by Act XX of 1929,
the expression “active prosecution of any suit or proceeding” was
used. That expression has now been omitted, and the Explanation
makes it abundantly clear that the lis continues so long as a final
decree or order has not been obtained and complete satisfaction
thereof has not been rendered. At page 228 in Sir Dinshah Mulla’s
“Transfer of Property Act”, 4th edn., after referring to several
authorities, the law is stated thus:
“... Even after the dismissal of a suit a purchaser is subject to lis
pendens, if an appeal is afterwards filed.”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4731-4732 OF 2010
T. Ravi & Anr. Vs. B. Chinna Narasimha & Ors. etc.
With
[Civil Appeal Nos.4733 of 2010, 4734-35 of 2010, 4736 of 2010, 4837-38 of 2010]
Dated: 21 March, 2017
Read full judgment here :Click here
Print Page
section 52 of the T.P. Act “suit or proceedings” is also applicable to the
applications. An application seeking extension of time is also a proceeding within
the meaning of the said provision and appeal filed is also continuation of the suit or
proceedings but comes within the meaning of the proceedings. The legislative
intent behind the amendment of section 52 was not only to cover the suit but also
to cover appeals and proceedings and same would include all applications/appeals
under the CPC. An application under Order 9 Rule 9 would also be covered within
the meaning of the expression suit or other proceedings to which the doctrine of lis
pendens would apply. It was also submitted that section 52 prior to amendment
prohibited transfer made during the “active prosecution” of a suit. Section 52 of the
Transfer of Property Act, embodies the rule of lis pendens, which prior to its
amendment only prohibited a transfer made during the “active prosecution” of a
suit or a proceeding in which any right to immoveable property was directly and
specifically in question. The expression “active prosecution”, which existed in the
section before its amendment in 1929, led to much uncertainty in the application of
the rule, and caused a divergence of judicial opinion. It was felt that the standard
of diligence, which would constitute “active prosecution”, could not be defined
with precision. To remove this uncertainty, the law was amended in 1929, and the
Amending Act XX of 1929 substituted the word “pendency” for the phrase “active
prosecution”; and there can now be no difficulty in deciding whether the transfer
was made during the pendency of a suit or proceeding. In Parmeshari Din v. Ram
Charan & Ors. AIR 1937 PC 260, it was held :
“2. It is clear that the question of the active prosecution of a suit is
one of fact, but it was not suggested in either of the Courts in India
that the plaintiffs had not actively prosecuted the suit, and were
consequently debarred from availing themselves of the rule of lis
pendens. The learned Judges of the Court of Appeal had, therefore, no
opportunity to express their opinion on this point; and their Lordships
cannot entertain an objection, which depends upon a question of fact
not dealt with below. Upon the record before them, there is no
indication of any delay or remissness in the prosecution of the suit, for
which the plaintiffs can be held responsible. Their Lordships,
therefore, agree with the High Court that the transfer relied upon by
the appellant cannot prejudice the rights of the decree-holders, and
that he cannot resist the decree obtained by them.”
The abovesaid principle of law settled in the year 1937 by the Privy Council
is still valid as discerned from the latest judgment of this Court rendered in the
case of Kirpal Kaur v. Jitender Pal Singh & Ors. (2015) 9 SCC 356 :
“21. The execution of the alleged gift deed by the deceased first
defendant in favour of the second defendant is also hit by
Section 52 of the Transfer of Property Act, 1882, as the said deed was
executed during the pendency of the proceedings and before the
expiry of the period of limitation for filing SLP. Further, during the
pendency of these proceedings, the second defendant, who has
claimed to be the alleged beneficiary of the suit Schedule “B”
property on the basis of alleged gift deed should have sought leave of
this Court as the donee and brought the aforesaid fact of execution of
the alleged gift deed in respect of “B” schedule property by the
deceased first defendant, which property has been devolved in his
favour, to the notice of this Court as provided under Order 22
Rule 10 of the CPC and defended his right as required under the law
as laid down by this Court in a catena of cases.
x x x x x
26. The legality of the alleged gift deed executed in favour of the
second defendant by the deceased first defendant in respect of the
Schedule 'B' property has been further examined by us and the same is
hit by Section 52 of the Transfer of Property Act, 1882, in the light of
the decision of this Court in the case of Jagan Singh v. Dhanwanti
(2012) 2 SCC 628, wherein this Court has laid down the legal
principle that under Section 52 of the Transfer of Property Act, 1882,
the 'lis' continues so long as a final decree or order has not been
obtained from the Court and a complete satisfaction thereof has not
been rendered to the aggrieved party contesting the civil suit. It has
been further held by this Court that it would be plainly impossible that
any action or suit could be brought to a successful termination if
alienations pendente lite were permitted to prevail.”
wherein the factum of the alleged gift deed was not made known to the
Court. This has been extrapolated in the case of Jagan Singh (dead) through LRs.
v. Dhanwanti & Anr. (2012) 2 SCC 628 thus :
“32. The broad principle underlying Section 52 of the TP Act is to
maintain the status quo unaffected by the act of any party to the
litigation pending its determination. Even after the dismissal of a suit,
a purchaser is subject to lis pendens, if an appeal is afterwards filed,
as held in Krishanaji Pandharinath v. Anusayabai AIR (1959) Bom
475. In that matter the respondent (original plaintiff) had filed a suit
for maintenance against her husband and claimed a charge on his
house. The suit was dismissed on 15.7.1952 under Order 9 Rule 2, of
the Code of Civil Procedure 1908, for non-payment of process fee.
The husband sold the house immediately on 17.7.1952. The
respondent applied for restoration on 29.7.1952, and the suit was
restored leading to a decree for maintenance and a charge was
declared on the house. The plaintiff impleaded the appellant to the
darkhast as purchaser. The Appellant resisted the same by contending
that the sale was affected when the suit was dismissed. Rejecting the
contention the High Court held in para 4 as follows:
“..In Section 52 of the Transfer of Property Act, as it stood
before it was amended by Act 20 of 1929, the expression
‘active prosecution of any suit or proceeding’ was used. That
expression has now been omitted, and the Explanation makes it
abundantly clear that the 'lis' continues so long as a final decree
or order has not been obtained and complete satisfaction thereof
has not been rendered. At p. 228 in Sir Dinshah Mulla's
"Transfer of Property Act", 4th Edn., after referring to several
authorities, the law is stated thus:
“Even after the dismissal of a suit a purchaser is
subject to 'lis pendens', if an appeal is afterwards filed.”
If after the dismissal of a suit and before an appeal is
presented, the 'lis' continues so as to prevent the defendant
from transferring the property to the prejudice of the plaintiff, I
fail to see any reason for holding that between the date of
dismissal of the suit under Order 9 Rule 2 of the Civil
Procedure Code and the date of its restoration, the 'lis' does not
continue.”
33. It is relevant to note that even when Section 52 of TP Act was
not so amended, a Division Bench of Allahabad High Court had
following to say in Moti Chand v. British India Corpn. Ltd. AIR
(1932) All 210:
‘10, ….The provision of law which has been relied upon
by the appellants is contained in Section 52, TP Act. The active
prosecution in this section must be deemed to continue so long
as the suit is pending in appeal, since the proceedings in the
appellate court are merely continuation of those in the suit
…’(see Gobind Chunder Roy v. Guru Churn Kurmokar ILR
1988 15 Cal. 94).”
34. If such a view is not taken, it would plainly be impossible that
any action or suit could be brought to a successful termination if
alienations pendente lite were permitted to prevail. The Explanation to
this section lays down that the pendency of a suit or a proceeding shall
be deemed to continue until the suit or a proceeding is disposed of by
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.
35. In the present case, it would be canvassed on behalf of the
respondent and the applicant that the sale has taken place in favour of
the applicant at a time when there was no stay operating against such
sale, and in fact when the second appeal had not been filed. We would
however, prefer to follow the dicta in Krishanaji Pandharinath AIR
1959 Bom 475 to cover the present situation under the principle of lis
pendens since the sale was executed at a time when the second appeal
had not been filed but which came to be filed afterwards within thePage 36
36
period of limitation. The doctrine of lis pendens is founded in public
policy and equity, and if it has to be read meaningfully such a sale as
in the present case until the period of limitation for second appeal is
over will have to be held as covered under Section 52 of the TP Act.”
31. The doctrine of lis pendens would be applicable even to the proceedings in
the nature of an appeal as has been emphasized in the case of Krishanaji
Pandharinath v. Anusayabai AIR 1959 Bom 475 thus :
“3. It is true that in this case the sale effected by Sidram was after
the dismissal of the suit filed by Anusayabai and before the suit was
restored, but the alienation being before, the final decree or order was
passed and complete satisfaction or discharge of the decree was
obtained, it must be regarded as pendente lite. In s. 52 of the Transfer
of Property Act, as it stood before it was amended by Act XX of 1929,
the expression “active prosecution of any suit or proceeding” was
used. That expression has now been omitted, and the Explanation
makes it abundantly clear that the lis continues so long as a final
decree or order has not been obtained and complete satisfaction
thereof has not been rendered. At page 228 in Sir Dinshah Mulla’s
“Transfer of Property Act”, 4th edn., after referring to several
authorities, the law is stated thus:
“... Even after the dismissal of a suit a purchaser is subject to lis
pendens, if an appeal is afterwards filed.”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4731-4732 OF 2010
T. Ravi & Anr. Vs. B. Chinna Narasimha & Ors. etc.
With
[Civil Appeal Nos.4733 of 2010, 4734-35 of 2010, 4736 of 2010, 4837-38 of 2010]
Dated: 21 March, 2017
Read full judgment here :Click here
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