J.V. Gupta, J
1. This is Defendant''s second appeal against whom suit for specific performance of the agreement of sale has been decreed by both the Courts below.
2. There was an agreement of sale dated June 24, 1975, of the suit property belonging to the Defendant known as Baithak wale comprising of a room, a Jakri, a bath room, a Uterine and Chandiwari and fitted with a tap bearing house No. 3-H/122 for a sum of Rs. 20,000/- A sum of Rs. 15,000/- is said to have been paid in advance as earnest money. The balance amount of Rs. 5,000/- was to be paid before the Sub Registrar. When the Defendant failed to perform her part of the agreement, the present suit was filed on January 14, 1977. In the written statement, the plea taken was that the Plaintiff is a money lender and thus gets such agreement executed from the lances as collateral security. According to the Defendant, she had executed a similar agreement in favour of the Plaintiff Madan Lal in the year 1971 for a sum of Rs. 7,000/- and then in the year 1973 for a sum of Rs. 15,000/- and the third one dated June 24, 1975, for sum of Rs. 20,000/. In these circumstances, the agreement executed was not a genuine one.
3. Meanwhile, one Thakar Dass had filed a suit against the Defendant vendor Smt. Jasoda Bai for recovery of his money. That suit was decreed on April 28, 1978. In execution of that decree, the suit property was attached on June 6, 1978 It was ultimately sold in public on September 29, 1979, in favour of R. P Gandhi, for a sum of Rs. 17,000/-, who is now being sought to be added as a party under Order 1, Rule 10, CPC Code, vide application C. M. No 2385 C of 1985 filed on behalf of the plantiff-Respondent.
4. The trial Court found that the Defendant had committed a breach of the agreement dated June 24, 1975, and she had received a sum of Rs. 15,000/- in advance as earnest money under the said agreement. The Plaintiff has always been ready and willing to perform his part of the agreement. It was also found that the Plaintiff it entitled to receive a sum of Rs. 20,000/- as damages in case the decree for specific performance of the agreement is not granted. Ultimately, the trial Court decreed the Plaintiff''s suit for specific performance of the agreement of sale on payment of Rs. 5,000/- plus the expenses of stamp and registration charges. However, it was also observed that the disputed house has been sold in Court auction during the pendency of the suit on September 29, 1979. The same will not affect the right of the Plaintiff to get the sale deed executed from the auction purchaser who has since purchased the house in dispute in Court auction It may be stated that the Plaintiff never impleaded the auction purchaser as a party during the pendeney of the suit in the trial Court. In appeal, filed on behalf of the Defendant vendor, the learned Additional District Judge affirmed the findings of the trial Court and thus maintained the decree for specific performance of the agreement passed by the trial Court in favour of the Plaintiff Dissatisfied with the same, the Defendant filed the second appeal in this Court.
5. The only question to be decided in this appeal is as to whether the Plaintiff is entitled to the relief of specific performance of the agreement of sale or on the facts and circumstances of the case he is entitled to a decree for damages only to the tune of Rs. 20,000/- as found by the trial Court. This point was agitated before the lower Appellate Court. The learned Additional District Judge referred to
6. The learned Counsel for the Defendant-Appellant contended that even if the rule of lis pendens as contemplated u/s 52 of the Transfer of Property Act applies even then the Plaintiff was not entitled to the decree for specific performance and could only claim damages in view of the provisions of Sections 20 to 22 of the Specific Relief Act. Reference was also made to Section 64 of the Code of Civil Procedure, which provides that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. According to the learned Counsel, the sale for the enforcement of which a suit for specific performance of the agreement has to be filed being of a voluntary nature Section 52 of the Transfer of Property Act does not strictly apply to such a sale. In support of his contention, he referred to Buta Ram and Ors. v. Sayyad Mohammad (1935) 37 P. L. R 596., Mohinder Singh and Anr. v. Nanak Singh (1971) 73 P. L. R. 257.,
7. The learned Counsel for the auction purchaser contested the application for impleading him as a party to the appeal and at the same time referred to
8. The learned Counsel for the Plaintiff Respondent submitted that since the attachment had taken place during the pendency of the suit, the rule of lis pendens as contemplated u/s 52 of the Transfer of Property Act was applicable and the suit has been rightly decreed for specific performance by the Courts below. In support of his contention he referred to
9. I have heard the learned Counsel for the parties and also gone through the case law cited at the Bar. The judgment of the Supreme Court in Keiarnath Lal''s case (supra) is not of much help to decide the controversy in the present appeal Assuming that the doctrine of lis pendens is applicable in the present case even then the Plaintiff was not entitled to the decree for specific performance of the agreement which is a discretionary relief to be granted by the Court keeping in view Sections 20 to 22 of the Specific Relief Act. The relevant observations in this behalf are contained in Jayaram Mudaliar''s case (supra) which are to the following effect:-
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 property to which claims are put forward.
10. Similarly, in the same judgment, it was also observed by the Chief Justice Sikri that though Section 53 does not in terms apply to Court auctions and revenue sales, the principle of lis pendens applies to such sales. But the effect of the application of the principle may vary according to the nature of the provisions under which the revenue sale is held. This judgment was later on followed in Messrs Supreme General Films Exchange Ltd''s case (supra) Earlier in Samarendra Nath Sinha''s case (supra), it was held that Section 52 does not strictly apply to involuntary alienations like Courts sales, but principle of lis pendens applies to such alienations. A some what similar matter was considered by this Court in Mohinder Singh''s case (supra) when it was observed that the basic" idea of placing an immoveable property under attachment is to prohibit the judgment debtor from transferring or charging the same in any way and no third party can take benefit from such transfer or charge as enjoined in Order 21, Rule 54, Code of Civil Procedure. Section 64 is intended for the protection of the attaching creditor only who has taken out execution. Sale in pursuance of a previous agreement to sell is none the less a private alienation of property which shall be void as against the claims of the attaching decree-holder and not against other persons. 11. Thus, taking into consideration the facts and circumstances of the case, the Plaintiff was not entitled to the discretionary relief of specific performance of the agreement, particularly when the suit property was attached on 6th June, 1978, and was sold in a Court auction on 29th July, 1979, whereas the trial Court decreed the Plaintiff''s suit on 29th May, 1981. By the time the decree was passed the auction had already taken place and the proper course to be adopted by the trial Court was to pass the decree for damages for a sum of Rs. 20,000/-, as assessed by it. Apart from that, it is in the evidence that earlier the Plaintiff got the agreement executed on 8th September, 197 , Exhibit D.W. 4/1 for a sum of Rs. 7,000/- and second time on 24th December, 1973, Exhibit D.W. 4/2 for a sum of Rs. 15,000/- and the third agreement was executed on 24th June, 1975, Exhibit P. 2 for a sum of Rs. 20,000/- the damages as assessed by the trial Court.
12. Consequently, the appeal succeeds, the judgment and decree of the Courts below for specific performance of the agreement are set aside and the platiff''s suit is decreed for the recovery o Rs. 20,000/- by way of damages against the Defendant-Appellant Smt. Jasoda Bai with costs throughout. CM. No. 2385-C of 1985 is disposed of accordingly.
