Case Note & Summary
The case involves three second appeals arising from execution proceedings. The respondent decree holders (Respondent Nos.1-3) obtained a compromise decree in Regular Civil Suit No.1064 of 1995 against the builder/developer (Respondent No.4). The decree was put into execution via Regular Darkhast No.16 of 1999. During the pendency of execution, the appellants purchased shops from the builder/developer around January 2006. They filed applications in the execution proceedings claiming to be bona fide purchasers for value without notice and sought to obstruct the decree. The Executing Court rejected their applications on 14-9-2009, holding that the purchases were made during the pendency of execution proceedings and thus the appellants could not be bona fide purchasers. The appellants appealed to the District Court, which dismissed their appeals on 29-3-2011. The appellants then filed second appeals in the High Court. The High Court examined whether the doctrine of lis pendens applies to execution proceedings and whether the appellants could claim bona fide purchaser status. The court held that the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 applies to execution proceedings as they are a continuation of the suit. Since the appellants purchased the shops during the pendency of execution, they were bound by the decree. The court also noted that the findings of fact by the lower courts were concurrent and based on evidence, and no substantial question of law arose. Consequently, the second appeals were dismissed at the admission stage.
Headnote
A) Civil Procedure - Execution Proceedings - Obstruction by Purchaser Pendente Lite - Doctrine of Lis Pendens - Section 52 Transfer of Property Act, 1882, Order 21 Rule 97 Code of Civil Procedure, 1908 - The appellants purchased shops from the judgment-debtor during the pendency of execution proceedings. The Executing Court rejected their applications claiming bona fide purchase. The High Court held that the doctrine of lis pendens applies to execution proceedings and that a purchaser during the pendency of such proceedings cannot claim to be a bona fide purchaser for value without notice. The appeals were dismissed. (Paras 1-10)
B) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court found that no substantial question of law arose as the findings of fact by the courts below were concurrent and based on evidence. The appeals were dismissed at the admission stage. (Paras 1-10)
Issue of Consideration
Whether the appellants, who purchased shops during the pendency of execution proceedings, can be considered bona fide purchasers for value without notice and whether the doctrine of lis pendens applies to execution proceedings.
Final Decision
The second appeals are dismissed at the admission stage. No substantial question of law arises. The orders of the Executing Court and District Court are confirmed.
Law Points
- Doctrine of lis pendens applies to execution proceedings
- purchaser pendente lite cannot claim bona fide purchaser for value without notice
- Section 52 Transfer of Property Act
- 1882
- Order 21 Rule 97 CPC
- Section 100 CPC
Case Details
2012 LawText (BOM) (03) 119
Second Appeal No.374 of 2011 with Civil Application No.925 of 2011, Second Appeal No.375 of 2011 with Civil Application No.926 of 2011, Second Appeal No.376 of 2011 with Civil Application No.927 of 2011
Shri Bharat Mehta with Mr. I.S.Thakur and Mr. Anurag Jain i/b M/s. Global Juris Consults for the Appellants in Second Appeal No.374 of 2011, 375 of 2011 and 376 of 2011; Mr. Mandar Limaye for the Respondent No.4; Mrs Saroj N. Jadhav i/b Ms Neeta Karnik for the Respondent Nos.1 to 3
Uttam Murari Kadam, Avinash Uttam Kadam, Jayashree Suresh Pai & Anr.
Smt. Hajira Begum Nisar & Ors.
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Nature of Litigation
Second appeals against dismissal of appeals by District Court in execution proceedings where appellants claimed to be bona fide purchasers of shops during pendency of execution.
Remedy Sought
Appellants sought to set aside the orders of the Executing Court and District Court rejecting their applications claiming bona fide purchase and to allow them to obstruct execution of decree.
Filing Reason
Appellants purchased shops from the judgment-debtor during pendency of execution proceedings and claimed to be bona fide purchasers for value without notice, but their applications were rejected by Executing Court and District Court.
Previous Decisions
Executing Court rejected appellants' applications on 14-9-2009; District Court dismissed appeals on 29-3-2011.
Issues
Whether the doctrine of lis pendens applies to execution proceedings?
Whether the appellants can be considered bona fide purchasers for value without notice when they purchased during pendency of execution?
Whether any substantial question of law arises in the second appeals?
Submissions/Arguments
Appellants argued that they were bona fide purchasers for value without notice and had purchased the shops before any decree was passed against them.
Respondents argued that the purchases were made during pendency of execution proceedings and thus the appellants were bound by the decree under the doctrine of lis pendens.
Ratio Decidendi
The doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 applies to execution proceedings as they are a continuation of the suit. A purchaser during the pendency of execution proceedings cannot claim to be a bona fide purchaser for value without notice and is bound by the decree.
Judgment Excerpts
The Appellants above named claimed to have purchased a shop each from the Respondent No.4 herein.
The Executing Court held that the Appellants had purchased the shops in question during the pendency of the proceedings in the Executing Court and therefore could not be said to be bonafide purchasers for value without notice in the light of the fact that the lis pendence notice was registered in respect of the property in question.
Procedural History
Regular Civil Suit No.1064 of 1995 was compromised on 29-10-1996. Decree was put into execution via Regular Darkhast No.16 of 1999. Appellants filed applications (Exhibits 239, 246, 253) in execution claiming bona fide purchase. Executing Court rejected applications on 14-9-2009. Appellants appealed to District Court (Civil Appeal Nos.6, 7, 8 of 2010) which were dismissed on 29-3-2011. Appellants then filed second appeals in High Court.
Acts & Sections
- Transfer of Property Act, 1882: Section 52
- Code of Civil Procedure, 1908: Order 21 Rule 97, Section 100
