At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE P. SOMARAJAN
For the Petitioners: V.T. Madhavanunni, J. Abhilash, V.A. Satheesh, Advcates. For the Respondents: R1, John Joseph (Roy), A.J. Benny, Advocates.
1. Challenging the judgment rendered in A.S.No.203/2008 of the Additional District Court, Kozhikode, confirming the order in E.A.No.100/06 in E.P.No.269/05 in O.S.No.933/98 of the Principal Munsiff's Court-II, Kozhikode, the petitioners came up with this appeal.
2. The suit was originally filed for injunction simplicitor against trespass. Subsequently, the suit was amended incorporating a prayer for mandatory injunction on account of dispossession alleged to have been done by the
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defendants during the pendency of the suit. The suit was decreed granting mandatory injunction directing the defendants to vacate the property. Though the decree and judgment was taken up in appeal in A.S.No.189/2003, it has ended in dismissal. In the meanwhile, on 12.04.2004, the judgment debtor/second respondent transferred his right, title and interest over the property under Exhibit A1 registered sale deed in favour of present petitioners/appellants. Thereafter the decree was put in execution, wherein the appellants entered appearance by filing E.A.No.100/2006 with a prayer to declare their right, title and interest over the property. It was rejected by the Execution Court. In appeal it was confirmed, against which this Second Appeal is preferred.
3. It was submitted that the Lower Appellate Court and the Trial Court proceeded with the application under the premise that it is a claim petition under Order XXI Rule 58, though the application was submitted under Section 47 of the Code of Civil Procedure. The right, title and interest of the appellants over the property ought to have been adjudicated by the Execution Court. It was dismissed without adjudicating the right, title and interest of the appellants. The appellants, being the bonafide purchasers who obtained the property after conducting all possible inquiries regarding its title, are entitled to a declaration of valid title over the property and that the property is not liable to be proceeded against in execution of the decree.
4. Admittedly, Exhibit A1 sale deed was executed during the pendency of the suit and as such the appellants would be in the status of pendente lite transferee bound by the decree, being the persons litigating under the defendants/judgment debtors. Since they have stepped into the shoes of judgment debtors, they cannot maintain an application under Rule 58 of Order XXI CPC.
5. The contentions which were available to the judgment debtors/defendants alone can be raised by a pendente lite transferee who is bound by the decree by virtue of Section 52 of the Transfer of Property Act. No question of bonafide purchaser based on valid consideration can be raised by a pendente lite transferee against the execution of the decree of immovable property, irrespective of whether he is a party to the proceedings or not. The question of bonafide purchaser or entitlement of any declaration of title or interest over the property based on a pendente lite transfer cannot be raised in execution of the decree of immovable property. It is not for annulling the transfer effected by the parties to a suit, but the decree passed would bind on the transferee as if he is the judgment debtor, though he is not a party to the suit. In other words, the decree on immovable property would bind on both the judgment debtors and the persons litigating under them including those who derived title or interest over the property during the pendency of the suit. Pendente lite transfer would stand as valid subject to the result of the suit. An application submitted for declaring their title or interest over the property based on pendente lite transfer cannot be entertained by the Execution Court either under Section 47 or by any of the provisions under Order XXI CPC. The principle behind it is that the decree passed determining any right to immovable property once attained finality cannot be reopened either by judgment debtors or by persons litigating under any of them. A pendente lite transferee is a person litigating under the judgment debtor who is bound by the decree and unless he has got any independent right, title and interest over the property apart from the right obtained under pendente lite transfer, he cannot maintain an application for declaration of his title or interest over the property either in execution of the decree or by any other proceedings against the decree holders. In short, it is outside the purview of Execution Court to consider the right, title and interest obtained by a pendente lite transferee over the property which is the subject matter of the suit or to declare the same either under Section 47 or under any of the provisions in Order XXI of CPC. The decree granted is for removing the encroachment by way of mandatory injunction and hence the application submitted by the petitioners lacks in merits and the orders passed by both the Trial Court and the First Appellate Court do not call for any interference.
Second appeal is dismissed. No costs.