KANAGASABHAI PATHAR Vs. POORNATHAMMAL

JUDGEMENT

(1.) The point of law which arises in this revision petition does not appear to be covered by authority and must be decided on the language of the relevant statutory provisions. The respondent to this petition obtained a decree against one Apparasu Pathar in O.S. No. 382 of 1943 in the Court of the District Munsiff of Chidambaram for delivery of possession of a portion of a house. It is common ground that the original owner of the house was one Saradambal Ammal who died sometime before the institution of the suit. The respondent claimed title to the property as the purchaser from one Thaiyanayaki Ammal, the mother of the said Saradambal Ammal. The suit was based on a rent deed executed by the defendant Apparasu and after contest was decreed in the respondent's favour. In execution of the decree, the respondent obtained possession. The petitioner in this Court thereupon filed an application under Order 21, Rule 200 of the Code of Civil Procedure for delivery of possession alleging that he had been in possession of the property in his own right and had been wrongly dispossessed in the execution proceedings taken by the respondent. He claimed title from one Marimuthu Ammal who was alleged to be the legatee of the property under a will executed by the deceased Saradambal. The learned District Munsiff of Chidambaram dismissed his application and the petitioner seeks to revise the order of dismissal.

(2.) The learned District Munsiff held on a consideration of the evidence that the petitioner was in possession of the house at the time of the delivery to the respondent in execution of his decree. He however held that the petitioner's right was affected by the rule of lis pendens contained in Section 52 of the Transfer of Property Act and he was therefore not entitled to any relief. He arrived at this finding on the following facts:

(3.) The suit for recovery of possession was filed by the respondent on 13th November, 1943. The sale deed under which the petitioner claims title to the property from Marimuthu Ammal is dated 24 November, 1943, i.e., subsequent to the institution of the respondent's suit. The petitioner's case in the lower Court was that after his purchase he gave notice to the judgment-debtor in the respondent's suit to quit and deliver possession of the portion in his occupation and that the judgment-debtor thereupon quit the premises. The learned District Munsiff held that as the judgment-debtor handed over possession in pursuance of the notice to quit issued by the petitioner when the suit was pending the petitioner's right was affected by the rule of lis pendens and would not avail against the respondent decree-holder.