TELUGUNTLA HEMA BALA SUNDARI Vs. PANDIRI SAKUNTALAMMA

JUDGEMENT

(1.) Questions of considerable importance fall for discussion and decision in this Civil Miscellaneous Appeal which arises out of proceedings in execution. Broadly stated, they are: (i) Whether a charge created by the operation of Section 55 (4) (b) of the TRANSFER OF PROPERTY ACT, 1882 for the unpaid purchase money in a decree for specific performance can be enforced by bringing the property to sale without a further suit under Order 34 Rule 14 of the Code of Civil Procedure? (ii) Whether an application under Section 47 of the Code of Civil Procedure is maintainable when the issue involved for decision is not one arising between the parties to the suit in which a decree was passed, but one arising between two auction purchasers representing the same person in different suits? (iii) Whether the Doctrine of Lis Pendens incorporated in Section 52 of the TRANSFER OF PROPERTY ACT, 1882 can be invoked to invalidate involuntary alienations such as execution-sales to enforce a compromise decree in a suit then pending?

(2.) The essential and relevant facts giving rise to the questions may be briefly stated: Once Teluguntla Yesoda Ratnam obtained a decree for money in O S No 108 of 1971 on the file of the Subordinate Judge Court, Vijayawada, against her husband Teluguntla Sundara Satyanarayana Rao and his minor son Teluguntla Balakrishna Venkata Prakash. In execution of the decree she filed E P No 21 of 1972 and brought the property of the judgment-debtors to sale. The property was put to auction on 14-9-1972. The decree-holder became the auction-purchaser. The sale was confirmed on 23-10-1972 and the decree-holder took delivery of the property on 6-12-1972 under the delivery receipt, Ex. A-4. She has been in possession and enjoyment of the said property since then.

(3.) Teluguntla Sundara Satyanarayena Rao and his minor son Teluguntla Balakrishna Venkata Prakash judgment-debtors in 0 S No 108 of 1971 had earlier filed 0 S No 78 of 1956 before the Court of the Subordinate Judge, Vijayawada, against' Pandiri Sakuntalamma and two others for specific performance of an agreement of sale dated 1-4-1965 and for a direction to the said Pandiri Sakuntalamma to execute the registered sale deed. The suit was decreed on 4-10-1966 and Sakuntalamma was directed to execute the sale deed and also pay the costs. Against the said decree, Sakuntalamma filed an appeal, A S No 474 of 1968 in the High Court. The matter was compromised on 14-9-1970 and the compromise decree, Ex. A-1, was accordingly passed. Even before the compromise decree, Sakuntalamma executed the sale deed on 30th March, 1968. She filed an Execution Petition, E.P. 158 of 1973 in O S No 78 of 1966 to recover the unpaid purchase money due under the compromise decree against Teluguntla Sundara Satyanarayana Rao and his minor son, Teluguntla Balakrishna Venkata Prakash. It appears, Yasoda Ratnam, meanwhile created an equitable mortgage on the property in favour of one Shaik Raza Ahmed. The transferee of the said mortgage filed E A No 38 of 1975 to raise the attachment. It was dismissed on 22-4-1975. The property was sold on 24-4-1975 in the Court auction. Mandavalli Chalapalhi Rao became the auction purchaser at the said auction.