Case Note & Summary
Background: The dispute centered around two agricultural lands in Kenchanahalli village originally owned by one Siddagirigowda. His first wife Thopamma filed a maintenance suit (O.S. No.245/1968) and obtained a decree on 24.06.1976 for monthly maintenance of Rs.100 and a charge over all his 13 properties, including the suit lands. During the pendency of that suit, Siddagirigowda sold the suit properties to N.K. Giriraja Shetty (the plaintiff) under a registered sale deed dated 09.11.1974 for Rs.10,000. Thopamma, in execution of her decree, brought the suit properties to auction on 05.10.1977; she herself, with court permission, purchased them. N.K. Giriraja Shetty filed an application under Section 47 r/w Order 21 Rule 90 CPC in the execution case on 05.11.1977, but it was dismissed for default on 31.03.1978 and the sale was confirmed. Meanwhile, on 05.01.1978, Siddagirigowda executed a settlement deed of the same properties in Thopamma’s favour. On 19.04.1978, N.K. Giriraja Shetty instituted the present suit (O.S. No.109/1978, renumbered O.S. No.85/1989) seeking declaration of his title and possession. Thopamma later sold the properties to Siddagangaiah during the pendency of the suit. The trial court dismissed the suit, holding that the sale to N.K. Giriraja Shetty was hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act and did not bind Thopamma or her successors. On appeal by N.K. Giriraja Shetty, the first appellate court reversed the trial court’s judgment and decreed the suit, finding that the original maintenance suit and execution proceedings were collusive. The legal representatives of Siddagangaiah (the subsequent purchaser) then filed the present Regular Second Appeal before the High Court. The High Court admitted the appeal and framed four substantial questions of law: (1) whether the first appellate court was justified in concluding that the decree and execution were collusive when the trial court made no such finding; (2) whether the title of a transferee pendente lite in a maintenance and charge suit is affected by a decree for charge; (3) whether the suit for declaration is maintainable without a prayer to set aside the auction sale as void; and (4) whether a separate suit lies after dismissal for default of the application under Order XXI Rule 90 CPC. The appellant argued that the sale was void under lis pendens, that the auction sale was valid, that the dismissal of the earlier application bars a fresh suit, and that no relief was sought against the auction. The respondent contended that the sale was not affected by lis pendens, that he had acquired absolute title, that the auction sale was void for want of notice to him, and that an independent suit was maintainable. The High Court examined the evidence and noted that the maintenance suit had remained pending for eight years, which did not by itself establish collusion. However, the court observed that the execution case targeted only the suit properties already sold to the respondent, sparing the other 11 properties of Siddagirigowda. It further noted that Siddagirigowda executed a settlement deed of the same properties to Thopamma after she had already purchased them in auction, which was a strong circumstance indicating collusion. The judgment, as reproduced, ends at this point without recording the final decision on the substantial questions of law.
Issue of Consideration
1. When the trial Court did not arrive at a conclusion that the suit in O.S. No.245/1968 and the execution proceedings are collusive, whether the first appellate Court was justified in holding that the suit and the execution proceedings are collusive and in doing so, appreciated the evidence illegally and in capricious manner and thereby committed an illegality in the impugned Judgment and Decree? 2. Whether the title of the transferee of the immovable property pendente lite, which is the subject matter in a suit for maintenance and charge is affected by a decree for charge on the said property? 3. Whether the suit instituted by the respondent for the relief of declaration is maintainable in the absence of seeking the relief that the auction sale is void or not binding? 4. When an application filed under Order XXI Rule 90 CPC was dismissed for default, whether separate suit filed by such applicant is maintainable in law?
