MUSTHAFA Vs. ANDREWS

JUDGEMENT

(1.) This appeal is filed by the claimant petitioner, in E.P. No. 514/1998 in O.S. 245/1984 on the file of the Sub Court, Trichur. The first respondent obtained a decree for specific performance of an agreement for sale as against the second respondent. At the time of execution of the decree the petitioner filed the present claim petition contending that he is a bona fide purchaser for value without notice of the agreement and also contending that the execution proceedings is initiated by the first respondent in collusion with the second respondent to deprive the petitioner of the plaint schedule property. The execution court rejected the claim petition and, hence, the petitioner has filed this appeal.

(2.) The suit was filed in respect of two items of properties, 29 cents in Sy. No. 121/1 of Chelakkara Village and 66 cents in Sy. No. 455/1 of Eranallur Village. The claim petition is only in respect of 25 cents in Sy. No. 455/1. This property admittedly belonged to the second respondent. He sold the property claimed by the appellant to one Vasudevan Bhattathirippad as per document No. 2632/1986 on 26-11-1986. He in turn sold that property in 1992 to one Khayarunnisa by Ext.A2 dated 25-7-1992. From Khayarunnisa the appellant purchased the property as per Ext.A1 dated 22-8-1992. Thereafter the appellant constructed a residential building having plinth area of 4000 sq.ft. spending about Rs. 20 lakhs and started residence. In the meanwhile the first respondent who is said to have obtained a compromise decree in O.S. No. 245/1984 filed E.P. No. 36/1995. The decree was obtained on the basis of an agreement dated 11-11-1985 for sale executed by the second respondent in favour of the first respondent and a compromise decree was passed on 27-6- 1985. After getting the decree, the decree holder kept quiet for about ten years and filed the execution petition only on 8-3-1995. In the execution petition the judgment debtor remained ex parte. The decree holder got the document executed through court on 17-3-1998. It is to get delivery of the property on the basis of such sale deed that further E.P. was filed as E.P. No. 514/1998. According to the appellant the second respondent had parted with the property as early as in 1986 and in 1992 when he purchased the property he was not aware of any decree passed by the civil court. Nothing was discernible from the encumbrance certificate obtained by him. If he had known about any such agreement and decree he would not have spent Rs. 20 lakhs for construction of the residential building in the property when various other plots were available for purchase.

(3.) The execution court found that the purchase of the property by the appellant is hit by Section 52 of the Transfer of Property Act and he is not entitled to set up a case of bona fide purchaser for value without knowledge of the decree. In the claim petition the appellant had apart from praying for exclusion of the property from being delivered in execution of the decree also claimed as an alternative relief for payment of value of improvements to the tune of Rs. 25 lakhs. According to the execution court the transfer of the property by the second respondent to Vasudevan Bhattathiripad in 1980, was without knowledge of the decree holder and to defeat him. Therefore, it could not be said that these transfers were made in collusion between the decree holder and judgment debtor. The execution court found that since the purchase of the property by the appellant was hit by the principles of lis pendens a transferee cannot claim the benefit of a bona fide purchaser for valuable consideration. Therefore, the appellant did not get any right in the plaint schedule property. It is also found that he is not entitled to get the value of improvements. The claim made under Section 51 of the Transfer of Property Act was negatived on the ground that the purchase of the property by the appellant was hit by lis pendens.