SURAJ BHAN Vs. GAJ RAJ SINGH

JUDGEMENT

(1.) This is an execution second appeal. Briefly the facts giving rise to this appeal are as follows:-Respondent No. 4, Khacheru Singh, entered into an agreement for sale of the property in question on l6th July, 1964 in favour of respondents Nos. 1, 2 and 3, Gaj Raj Singh, Jatat Singh and Jai Singh, Rs. 5,000/- was paid by respondents Nos. 1, 2 and 3, as earnest money and the property was agreed to be sold for Rs. 10,000/-. On 12th August, 1966 a suit was filed for specific performance of the contract of sale. This suit was decreed on 6th Sept., 1967. Thereafter the decree-holder put the decree into execution. Khacheru Singh filed an objection to the effect that the property in dispute had already been sold away in execution of the decree in suit No. 34 of 1966, Suraj Bhan v. Khacheru Singh and as such no saleable interest was left in the property and the decree could not be executed. Suraj Bhan also filed an objection contending that the sale in his favour had been confirmed and as such Section 52 of the Transfer of Property Act does not apply and, therefore, the decree passed in favour of the respondents Nos. 1, 2 and 3, cannot be executed. The case of Suraj Bhan was that a promissory note dated 10th August, 1963, was executed by Khacheru Singh in his favour and thereafter Suit No. 34 of 1966 was filed by Suraj Bhan on 11th April, 1966 on the basis of the promissory note which was decreed On 29th July, 1966. The property was attached before the judgment on 10th May, 1966, and in execution of the decree the property was sold in 12th May, 1967, which was purchased by Suraj Bhan. The sale was confirmed on 4th July, 1967 and possession was obtained by him, 4-11-67.

(2.) The sole question, therefore, which came up for consideration before the executing Court was as to whether the auction sale in favour of Suraj Bhan was hit by the principle of lis pendens as laid down in Section 52 of the T.P. Act. The executing Court held that Section 52 of the T.P. Act applied and as such the objection was dismissed on 29th March, 1968. Against the judgment dated 29th March, 1968, an appeal was filed before the lower appellate Court. The lower appellate Court agreed with the conclusion of the executing Court and dismissed the appeal on 1st January, 1973. Against the judgment dated 1st January, 1973, the present appeal has been filed in this Court.

(3.) Learned counsel for the appellant hat, contended firstly that Section 52 of the T.P. Act does not apply to an auction sale in execution of the decree of the Court of competent jurisdiction. In support of this submission he has relied on Section 2 (d) of the T.P. Act.