A KULANDAIVELU PILLAI Vs. SOWBAGYAMMAL

JUDGEMENT

(1.) The plaintiff is the appellant. He purchased the property at an auction held by the Official Receiver on 20 December, 1927. The defendant is a purchaser of the same property on 25 April, 1940, in execution of a charge decree in her favour of the year 1911. At first, the suit was only for an injunction but later a prayer for possession was added on the ground that the defendant dispossessed the plaintiff. The District Munsiff decreed the plaintiff's suit holding that he was a bona fide purchaser for value without notice of the charge decree in execution of which the defendant purchased the property. But on appeal the Subordinate Judge dismissed the plaintiff's suit not because the plaintiff was not such a bona fide purchaser but on the ground that the plaintiff's purchase from the Official Receiver was affected by the doctrine of lis pendens. The Us Q.S. No. 44 of 1911, fructified into a charge decree for maintenance on 30 September, 1913. It is for some arrears due under this decree that the suit property was brought to sale and purchased by the defendant (who is herself the decree-holder). To O.S. No. 44 of 1911, the insolvents were parties. In fact the charge was obtained against them on their adjudication. The Official Receiver was brought on record in their place On 10 February, 1927.

(2.) Mr. Ramabhadrachariar, the learned advocate for the appellant, raised three points in support of the appeal.

(3.) He contended that under the law as it stood prior to the amending Act of 1929 introducing the explanation to Section 52 of the Transfer of Property Act a sujt which had resulted in a decree would not furnish a basis for the application of the doctrine of lis pendens as regards a transfer or alienation made by one of the parties when no execution of the decree was pending. The second point was that Section 52 will not apply as the properties became vested in the Official Receiver by operation of law under the Insolvency Act. The third point which he urged is that a bond fide transferee for value without notice is protected against a charge under Section 106 of the Act, notwithstanding, lis pendens.