Case Note & Summary
These appeals raised a common question about the necessity of granting a temporary injunction to restrain a defendant from creating third party interests or alienating property pending suit, in the face of Section 52 of the Transfer of Property Act, 1882. The appeals arose from suits relating to property, such as partition claims, specific performance agreements, and development agreements, where plaintiffs sought interim relief to prevent alienation. The trial courts had refused such injunctions, prompting the appeals. The core legal issue was whether the protection given by the doctrine of lis pendens under Section 52, which binds any transferee pendente lite to the result of the suit, suffices to protect the plaintiff's rights, thereby making an injunction unnecessary. The court considered the amended provisions of Section 52 introduced by Bombay Act XIV of 1939 and the requirement of registering notice of pendency under Section 18 of the Registration Act. It noted its own earlier decision in Sharad Jamnadharji Mor v. Arjun Yeshwant Dhanwatey, where it had held that refusal of temporary injunction need not be interfered with because of Section 52. However, on re-examination, arguments were advanced on both sides. Shri Thorat, for some appellants, argued that no such proposition had been laid down for over a hundred years despite the coexistence of Section 52 of the TP Act since 1882 and Order XXXIX of the CPC since 1908, suggesting no warrant for withholding an injunction. Ms Godse, for other appellants, cited Nathaji Anandrav Patil v. Nana Sarjerao Patil to support a point. The judgment was reserved on July 20, 2010 and pronounced on August 3, 2010, but the extract provided does not contain the final decision or ratio decidendi.
Headnote
A) Civil Procedure - Temporary Injunction - Section 52 Transfer of Property Act, 1882 - Necessity of Injunction to Restrain Alienation - The court examined the common question whether, when a plaintiff has established a prima facie case, the plaintiff would still suffer irreparable injury if an injunction to restrain creation of third-party interests is not issued, in view of the statutory protection under Section 52 which renders a pendente lite transfer subject to the decree; the court noted its earlier view in Sharad Mor's case that refusal of temporary injunction need not be interfered with due to such protection, but undertook to re-examine the correctness of that logic. (Paras 1-7)
Issue of Consideration
Whether a temporary injunction should be granted to restrain a defendant from creating third party interests or alienating property during pendency of a suit, given the protection afforded by Section 52 of the Transfer of Property Act, 1882
Law Points
- lis pendens
- Section 52 Transfer of Property Act
- 1882
- temporary injunction
- irreparable injury
- balance of convenience
- notice of pendency registered under Section 18 of Indian Registration Act
- 1908
- purchaser pendente lite bound by decree
- amendment by Bombay Act XIV of 1939
Case Details
2010 LawText (BOM) (08) 51
Appeal From Order No.542 of 2010 with connected matters Appeal From Order No.543 of 2010, Appeal From Order No.544 of 2010, Appeal From Order No.545 of 2010, Appeal From Order No.330 of 2010, and Appeal From Order No.248 of 2010
R.A. Thorat with Ravi Kadam (for appellants in AO 542-545), Nilesh Patil (for respondents in AO 542-545), M.M. Sathaye (for appellant in AO 330), Gauri Godse (for respondent in AO 330 and for appellants in AO 248), Dushyant Pagare (for respondents in AO 248)
M/s. Kachhi Properties (AO No.542, 543, 544, 545 of 2010); Ravindra Shivram Sarode (AO No.330 of 2010); Suresh Janu Penkar & Chandrakant Janu Penkar (AO No.248 of 2010)
Ganpatrao Shankarao Kadam, Uttam Dinkar Kada, Bhalerao Dinkar Kadam (AO 542); Mahendra Uttamrao Kadam, Amit Uttamrao Kadam, Amol Bhalerao Kadam (AO 543, 545); Ganpatrao Shankarao Kadam (AO 544); Pandurang Shankar Gaikwad (AO 330); Jitendra Namdev Pednekar, Namdev Vishram Pednekar (AO 248)
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Nature of Litigation
Appeals from orders refusing temporary injunction to restrain defendants from alienating or creating third-party interests in property pending suits.
Remedy Sought
Appellants sought temporary injunction to restrain respondents from creating third party interests or alienating property during pendency of suits.
Filing Reason
Plaintiffs in various property-related suits (partition, specific performance, development agreements, etc.) sought temporary injunction; trial court refused; hence appeals.
Previous Decisions
In Sharad Mor case, the same judge had held that refusal of temporary injunction need not be interfered with due to protection of Section 52 Transfer of Property Act; the correctness of that view is being re-examined.
Issues
Whether a temporary injunction to restrain alienation of property during pendency of suit is necessary when Section 52 of Transfer of Property Act, 1882 already protects the plaintiff's interest.
Submissions/Arguments
Shri Thorat argued that no such proposition had been laid down for over a hundred years despite Section 52 of the TP Act since 1882 and Order XXXIX CPC since 1908, so there may be no warrant for holding that injunction may not be granted.
Ms Gauri Godse cited Nathaji Anandrav Patil v. Nana Sarjerao Patil (1907) to support arguments in AO No.248 of 2010.
Judgment Excerpts
A common question about the necessity of granting a temporary injunction to restrain a defendant from creating third party interests/alienating the property pending suit, in the face of provisions of Section 52 of the Transfer of Property Act, 1882 has been raised in these appeals.
In the case of Sharad Jamnadharji Mor v. Arjun Yeshwant Dhanwatey & anr., reported in 2009 (4) Bom.C.R. 523, I had held that refusal of temporary injunction by the trial Court need not be interfered with, in view of protection statutorily provided by Section 52 of the TP Act.
Shri Thorat, learned senior counsel ... submitted that if such a proposition has not been laid down for over a hundred years, in spite of the fact that Section 52 of the TP Act is on the statute book since 1882 and Order XXXIX of the Code of Civil Procedure since 1908, there may be no warrant for so holding now.
Procedural History
Appeals from orders were filed against orders of trial courts refusing temporary injunctions in various suits pending in subordinate courts. All matters were heard together on a common question of law. Heard on July 20, 2010, judgment pronounced on August 3, 2010.
Acts & Sections
- Transfer of Property Act, 1882: Section 52
- Indian Registration Act, 1908: Section 18
- Code of Civil Procedure, 1908: Order XXXIX
- Bombay Act XIV of 1939: Section 2
