MUTHULAKSHMI Vs. A R SAHASRANAM

JUDGEMENT

(1.) THE two second appeals arise from the same suit instituted by the appellant in s. A. 1512 of 1970 for a declaration of his title to the property and permanent injunction forbidding the defendants from interfering with his possession. The first defendant instituted O. S. No. 145 of 1958 in the Court of the District Munsif, madurai, against her father for maintenance and asked for a charge over specific property. The institution of that suit was on 2-4-1958. On 20-8-1958, the father conveyed that property by sale for a consideration of Rs. 10,000, and the purchaser in his turn sold it on 8-2-1960, to the appellant in S. A. 1512 of 1970. The appellant in that appeal claims to have discharged an earlier mortgage on the property, the sum involved being Rs. 1500. But that was not the matter which was put in issue, nor was the subjectmatter of the decision of the Courts below. We will revert to it in due time. On 9-2-1959, the suit instituted by the daughter for maintenance was decreed. But on appeal, the property in respect for which she had asked for a charge was substituted by another. Eventually in second appeal the decree of the trial Court was restored. In execution of the maintenance decree, the property charged was brought to sale and the appellant in the other appeal was the purchaser. A sale certificate has since been issued in his favour. The suit for declaration and injunction was resisted mainly on the ground that the sale dated 20-8-1958 was hit by the doctrine of lis pendens. The trial Court decreed the suit, but subject to the plaintiff paying a sum of Rs. 2000. But the lower appellate Court directed in modification that the plaintiff should pay the entire value for which the Court auction sale was effected. Both the parties being dissatisfied, each has come up with a second appeal.

(2.) IN our opinion, the sale dated 20-8-1958 and the subsequent sale dated 8-21960 can operate only subject to the eventual result of O. S. No. 145 of 1958. These two sales were by private treaty and effected by the father after his daughter had instituted the suit for maintenance. Section 52 of the Transfer of property Act clearly states that the property in suit cannot be transferred or otherwise dealt with during the pendency of the suit by any party thereto or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. The Courts have uniformly held that a voluntary sale or a sale by private treaty will be hit by Section 52 whatever the position may be with regard to sale in invitum. Though it is true that the sale made to the appellant-plaintiff would not be invalid, it cannot prevail against the decree in O. S. No. 145 of 1958, and, therefore, against the Court sale held in execution of that decree. Seetharamanujacharyulu v. Venkatasubbamma, 59 Mad LJ 485, appears to be on all fours with the case on hand. Once a charge is granted by a decree of court, it takes effect from the date of the plaint and another sale subsequent to the date of the plaint will naturally be subject to lis pendens, and any conveyance during the pendency of the suit which includes execution proceedings, cannot prevail over the Court sale held in execution of the charge decree. In seetharamanujacharyulu v. Venkatasubbamma, 59 Mad LJ 485 = (AIR 1930 Mad 824), it was held that in circumstances almost similar to those in the present case, court auction purchase must prevail. We, therefore, hold that the sale held in execution of the decree is valid and the sale in favour of the plaintiff appellant cannot prevail over it.

(3.) BUT, as we mentioned earlier, and this is seen from a recital in the sale deed dated 20-8-1958, that a usufructuary mortgage had subsisted on the property even prior to the institution of the maintenance suit and that mortgage was discharged by the purchaser. If that be so, the Court auction purchase in execution of the maintenance decree will have to be subject to the earlier mortgage and the Court auction purchaser can only take possession after discharging the mortgage. But since the mortgage and the discharge thereof have not been put in issue and a decision arrived at in the Courts below, it has become necessary for us to remit the matter to the trial Court. That Court will decide that issue and if it finds that there was a mortgage and it was discharged by the purchaser, then it will grant a decree declaring the plaintiff's title to the usufructuary mortgage and an injunction forbidding the defendants from interfering with his possession until redemption. If, on the other hand, the finding on the existence and discharge of the mortgage is adverse to the plaintiff, then of course the suit will stand dismissed. The costs of the second appeals will abide the result of the suit.