NARAYAN KONDAJI TEMKAR Vs. GOVIND KRISHNA ABHYANKAR

JUDGEMENT

(1.) The question in this appeal is whether defendant No. 5-appellant, by reason of his vendors purchase of the interest of Kanoji at the sale in 1920 held under Secs.88 and 89 of the Criminal P. C. is entitled to the property as against the plaintiff-respondent who is a decree-holder in a suit for specific performance against the same Kanoji instituted on August 24, 1927, Both the lower Courts decided that the attachment by the civil suit by the plaintiff-respondent being prior, the doctrine of lis pendens applied to the sale by the criminal Court to the appellant, and decreed the claim. Defendant No. 5 appeals.

(2.) The relevant facts are shortly as follows : There was an agreement by Kanoji to sell the plaint property to the plaintiff-respondent, dated August 2, 1916. The respondent's suit No. 164 of 1917 was filed on August 24, 1917, was decreed on November 30, 1920, in favour of the plaintiff-respondent and directed Kanoji and his sons to execute the sale deed and the respondent to take possession. During the pendency of the suit Kanoji, who was being criminally prosecuted, absconded. The Magistrate issued a proclamation on January 19, 1917, and ordered him to appear by February 25, 1917. Kanoji failed to appear and the plaint property was attached by the Magistrate on December 8, 1917, and was sold on July 29, 1920. The suit was decreed on November 30, 1920.

(3.) Four points are taken for the appellant. It is argued, firstly, that the words in Section 88, Clause 7, of the Criminal P. C. "at the disposal of Government" imply that from the moment the absconder fails to appear on the date ordered, in this case February 25, 1917, all his right, title and interest in the property immediately passed over to Government. Secondly, and therefore, there was no title of Kanoji left to sue on August 24, 1917, when the plaintiff instituted the suit. Thirdly, Section 52 of the Transfer of Property Act, whatever application it might have to parties to the suit or to the civil Court which acts for the parties, has no application to Magistrates or criminal Courts acting on behalf of Government. Fourthly, the suit should have been filed within a year of the date of the sale by the criminal Court and is barred by limitation under Art. 14 of the Indian Limitation Act.