M RAMAIAH Vs. C NAGABHUSHANA REDDY

JUDGEMENT

(1.) Second appeal is by the defendant in OS 474/1994 who had filed a suit in OS 198/1991 before the trial court at Anekal for specific performance which had been decreed and ultimately in the appeals filed by the plaintiff as well as third party purchaser, both the appeals were dismissed. However, it appears, liberty is given to the third party purchaser to file an independent suit.

(2.) Be that as it may, in the suit filed against the order of the first appellate court by the plaintiff which is concluded, decree was ordered in favour of the plaintiff. Meanwhile, plaintiff / third party purchaser in another proceedings in view of the liberty said to have been given, filed OS 494/1994 against the plaintiff in OS 198/1991 (1st defendant herein) wherein he succeeded. However, in the appeal filed before the lower appellate court, the appeal came to be dismissed against which, parties are before this Court.

(3.) According to the original plaintiff who was the agreement holder in the year 1984 against the vendor, for specific performance of the same property filed a suit in the year 1991. Of course, according to the defendant, in the said suit, it appears, an exparte decree was passed. Despite that, when he filed an appeal against the order of the trial court decreeing the suit, in the first round of litigation, the appellate court also upheld the contention of the plaintiff, decreed the suit and confirmed the order of the trial court. However, in the peculiar circumstances on the basis of liberty granted by the first appellate court, the third party purchaser who had purchased the property before the decree was passed by the trial court in OS 198/1991, had also preferred an appeal immediately when he purchased the property just two months prior to the passing of the decree in favour of the plaintiff in OS 198/1991. The main bone of contention taken by the plaintiff is, it is a collusive suit between his vendor and subsequent purchaser and the doctrine of lis pendens applies to the case and also pleaded that it acts as resjudicata on the judgment in question. According to him, the suit filed by the third party purchaser also amounts to resjudicata much less when the property is purchased during pendency of the matter before the civil court, it is hit by S.52 of the Transfer of Property Act. More over, as per the judgment of the Apex Court in the case of Usha Sinha Vs Dina Ram & Ors, 2008 AIR(SCW) 2883, purchaser pendente lite cannot raise obstruction to execution of decree and the doctrine of lis pendens prohibits a party from dealing with the property which is the subject matter of suit. Lis pendens itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit. R 102 of O 21, CPC clarifies that there should not be resistance or obstruction by a transferee pendent elite. However, the plea of the third party purchaser is, he is a bondafide purchaser for value without notice.