VIDYAWATI Vs. LALA RAM

JUDGEMENT

(1.) THE plaintiff Smt. Vidyawati filed a suit against Lala Ram and Chotey Lal for the cancellation of the sale-deed executed in favour of Lala Ram in execution case No. 3 of 1976 arising out of original suit No. 57 of 1972 with regard to plot No. 218 having an area of 8. 14 acres. The ground alleged by the plaintiff was that she was a bona fide purchaser for value which she had purchased from defendant No. 2, Chotey Lal on the basis of three sale-deeds dated 31. 10. 1975, 20. 4. 1976 and 23. 2. 1977 and that her name was mutated in the revenue records. The plaintiff alleged that the defendant had knowledge about the execution of the sale-deeds in her favour inspite of which he had concealed this fact and, in collusion with the defendant No. 2, fraudulently got the sale-deed executed in execution proceedings. The plaintiff alleged that upon coming to know of the sale made by the defendants in execution proceedings, she had filed the present suit for the cancellation of the sale-deed. The plaintiff further contended that at the time when the decree was put in execution, the defendant No. 2 was no longer the owner and consequently the property could not be attached. Further, the defendant No. 1, being a decree holder could not participate in the auction proceedings without the permission of the Court.

(2.) THE suit was resisted by defendant No. 1 who contended that the Trial Court had no jurisdiction to decide the suit since the plot was bhumidhari and therefore, only the Revenue Court had the jurisdiction to decide the matter. The defendant further submitted that plot Nos. 218 was under attachment in Execution Case No. 23 of 1974 and again in Execution Case No. 3 of 1976 and, during the pendency of the attachment, the defendant No. 2 had illegally sold the property by means of three sale-deeds in favour of the plaintiff which were void under section 64 of the C. P. C. The defendant No. 1 submitted that Original Suit No. 57 of 1972 was filed against defendant No. 2 for the recovery of money which was decreed. The said decree was put in execution and in execution case No. 23 of 1974, the plot No. 218 measuring 10. 53 acres was attached. During the attachment proceedings, the defendant No. 2 sold a portion of the property to the plaintiff by means of a sale-deed dated 31st October, 1975. The said execution case was dismissed on 15. 11. 1975 and subsequently, fresh execution case no. 3 of 1976 was instituted in which the property was again attached. In these proceedings, the defendant No. 2, namely, the judgment debtor filed an objection under section 47 of the C. P. C. and, during its pendency, the defendant No. 2 again executed two sale-deeds dated 2. 4. 1976 and 23. 2. 1977 in favour of the plaintiff which fact was concealed by defendant No. 2. The executing Court after considering the matter dismissed the objection of the judgment debtor under section 47 of the C. P. C. The plot was put in auction in which the defendant No. 1 became the highest bidder. The auction was confirmed by an order dated 27. 7. 1979 and the sale-deed was executed thereafter. The defendant contended that the sale-deeds executed in favour of the plaintiff was null and void and that she was not a bona fide purchaser and had knowledge of the execution proceedings inspite of which she did not file any objection under Order XXI, Rule 89 or under section 47 of the C. P. C. and therefore, the suit was barred by the provisions of Order XXI, Rule 92 of the C. P. C. The defendant also contended that the suit was hit by the doctrine of lis pendens as provided under section 52 of the Transfer of Property Act.

(3.) THE Trial Court, after framing the issues, dismissed the suit holding that the plaintiff was not a bona fide purchaser and that her suit was not maintainable and was barred by Order XXI, Rule 92 of the C. P. C. and that the objections ought to have been filed either under section 47 of the C. P. C. or under Order XXI, Rule 89 of the C. P. C. Further, the suit was hit by the principles of lis pendens. The Trial Court further found that the sale-deeds executed by defendant No. 2 in favour of the plaintiff during the pendency of the attachment, were void.