JOGESH CHANDRA MONDAL Vs. TARULATA GHOSE

JUDGEMENT

(1.) By a kobala dated the 13th March, 1954, the plaintiff respondent conveyed certain property to the defendant appellant. By a separate agreement of the same date the defendant appellant agreed, to re-convey the same property to the plaintiff respondent. The plaintiff instituted the suit to enforce this agreement of re-conveyance. During the pendency of the suit the right, title and interest of the plaintiff under the agreement of re-conveyance dated the 13th March, 1954, was attached and sold in execution of a money decree and purchased by the defendant. In view of this purchase the defendant contended that the interest of the plaintiff under the agreement had vested in the defendant and accordingly the plaintiff was not entitled to continue the suit any further.

(2.) Both courts have held that the purchase by the defendant during the pendency of the suit is hit by the doctrine of lis pendens and that the defendant is not entitled to set up his purchase pendente lite against the plaintiff's contractual right to have the property re-conveyed to him. In my opinion this finding is erroneous.

(3.) The doctrine of lis pendens is embodied in section 52 of the Transfer of Property Act In view of section 2(d) section 52 of the Transfer of Property Act does not apply to a sale in execution of a decree of a court of competent jurisdiction. It is, however, well settled that the principle of (sic) pendens applies to such alienation. This is the effect of the Privy Council cases in (1) 12 I.A 171, (2) 13 I.A. 97 and (3) 24 I.A. 170.