KRISHNAJI PANDHARINATH Vs. ANUSAYABAI

JUDGEMENT

(1.) THIS is an appeal from an order in an execution proceeding. The appellant Krishnaji Bhalwankar is a purchaser of a house standing on, C. T. S. No. 985, of Pandharpur from one Sidram Damodar Gulbile by sale deed dated 17-7-1952. Anusayabai the 1st respondent to this appeal, filed suit No. 174 of 1952 in the Court of the Civil Judge. Junior Division, at Pandharpur against her husband Sidram Damodar Gulbile for a decree for maintenance. By her plaint Anusayabai claimed charge for future maintenance and for arrears of maintenance on the property described in paragraph 1 of the plaint, i. e. house standing on C. T. S. No. 985 of Pandharpur. This suit was filed on 14-2-1950. On 15-7-1952 the suit was dismissed for non-payment of process fee. On 17-7-1952 Sidram sold the property for Rs. 8,000/- to the appellant Krishnaji Bhalwankar. On 29-7-1952 Anasuyabai applied for restoration of the suit and the suit was ordered to be restored. On 20-9-1952 a decree exparte was passed against the defendant Sidram. By that decree the plaintiff Anasuyabai was awarded maintenance at the rate of Rs. 20/-per month from the date of the suit and Rs. 560/-as arrears of maintenance. The defendant was also ordered to set apart four Khans out of the property in suit for the plaintiff's residence and a charge for satisfaction of the maintenance awarded by the decree on the property described in paragraph 1 of the plaint was declared. Sidram having failed to comply with the decree Anasuyabai applied on 9-12- (1952 by Darkhast No. 611 of 1952 for recovery of the amount due to her, by sale of the house standing on C. T. S. No. 985 of Pandharpur. To that Darkhast the appellant, as the purchaser of the property pendentelite was impleaded. The appellant resisted the Darkhast, and contended 'inter alia' that he was a purchaser of the property for value from Sidram without notice of the plaintiff's claim and that the sale having been effected after the plaintiffs' suit was dismissed, it could not be regarded as a sale pendentelite, and the Darkhast filed by the plaintiff was not maintainable. The learned trial Judge held that the Darkhast wag maintainable and that the plea raised by the appellant did not avail him, the transfer in his favour being 'pendentelite'. The learned Judge accordingly ordered that warrant and proclamation for sale do issue. Against that order an appeal was preferred to the District Court at Sholapur, and the learned Assistant Judge who heard the appeal confirmed the order passed by the trial court and dismissed the appeal with costs. Against that decree this second appeal has been preferred.

(2.) MR. G. A. Desai who appears on behalf of the purchaser Krishnaji Bhalwankar, has raised three contentions in support of the appeal : (1) that the suit property having been sold by Sidraro after the suit was dismissed under O. IX, R. 2, of the Civil Procedure Code, the sale was not affected by the rule of 'lispendens' in S. 52 of the Transfer of Property Act; (2) that Anasuyabai's suit being merely a suit for maintenance, i. e. , for enforcement of a personal liability of Sidram to maintain her, the suit was not one in which a right to immoveable property was directly and specifically in question; and (3) that the appellant is a 'bona fide' purchaser for a value without notice of the claim of the plaintiff Anasuyabai and therefore also the decree is not liable to be executed against the property purchased by him.

(3.) IN my view, there is no substance in the contentions raised by Mr. Desai. S. 52 of the Transfer of Property Act, in so far as it is material, provides that during the pendency in any Court having authority within the limits of India of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot without leave of the Court be transferred or other wise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein. That provision is followed by an Explanation which states : "explanation ? For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof. " it is true that in the present case the sale effected by Sidram was after the dismissal of the suit filed by the plaintiff Anasuyabai and before the suit was restored, but the alienation having been made before the final decree or order was passed and complete satisfaction or discharge of the decree was obtained, it must still be regarded as 'pendentelite'. In section 52 of the Transfer of Property Act, as it stood before it was amended by Act XX of 1929, the expression "active prosecution of any suit or proceeding" was used. That expression has now been omitted, and the Explanation makes it abundantly clear that the 'lis' continues so long as a final decree or order has not been obtained and complete satisfaction thereof has not been rendered. At page 228 in Sir Dinshah Mulla's "transfer of Property Act'', 4th Edition, after referring to several authorities, the law is stated thus : "even after the dismissal of a suit a purchaser is subject to 'iis pendens', if an appeal is afterwards tiled. " if after the dismissal of a suit and before an appeal is presented, the 'iis' continues so as to pre vent the defendant from transferring the property to the prejudice of the plaintiff, I fail to see any reason for holding that between the date of dismissal of the suit under O. IX R. 2, of the Civil Procedure Code and the date of its restoration, the 'lis' does not continue.