TMI Blog2008 (5) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement for sale dated 4.7.1974 under which the first defendant in the suit had through her husband and power of attorney holder contracted to sell a house property in sum of ₹ 30,000/-. A sum of ₹ 5,000/- was given as advance and the remaining ₹ 25,000/- was to be paid before 31.7.1974. The said amount was not paid by 31.7.1974. The owner again sold the suit property to the appellant herein on 5.5.1975 for a sum of ₹ 45,000/- and possession in question was handed over to the appellant herein. Therefore, the plaintiff filed the aforesaid suit for enforcement of the specific performance of contract. The trial court dismissed the suit holding that the agreement was genuine but a false story was put up by the defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was instituted prior to the sale in favour of the second purchaser. The main argument which was advanced before learned Single Judge was that Section 19 of the Specific Relief Act, 1963 provides that a decree for specific performance against a subsequent purchaser for bona fide who has paid the money in good faith without notice of the original contract can be enforced as the same is binding on the vendor as well as against the whole world. As against this, it was contended by the respondents that Section 52 of the Transfer of Property Act which lays down the principle of lis pendens that when a suit is pending during the pendency of such suit if a sale is made in favour of other person, then the principle of lis pendens would be attrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 842 at p.843)wherein it was observed as under: It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party. Where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind required that the decision of the Court in the suit shall be finding, not only on the litigant parties, but also on those who derive title under them by alienat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them. Normally, as a public policy once a suit has been filed pertaining to any subject matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end. 4. Our attentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that subsequent purchaser has to be aware before he purchases the suit property. So far as the present case is concerned, it is apparent that the appellant who is a subsequent purchaser of the same property, he has purchased in good faith but the principle of lis pendens will certainly be applicable to the present case notwithstanding the fact that under section 19(b) of the Specific Relief Act his rights could be protected. 5. Mr.S.Ganesh, learned senior counsel appearing for the appellant has tried to persuade us that the plaintiff did not prove and plead that he was ready and willing to perform his part of the contract it is open to the second purchaser to raise this issue and in support thereof, he relied on a decision of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his part of the contract. This aspect was dealt with by learned Single Judge in its order dated 24.7.1990 and learned Single Judge in paragraph 8 held as follows: On the first of these submissions, I find that as against the definite plea in paragraph 7 of the Plant that Plaintiff has been and is still ready and is still ready and willingly specifically to perform the agreement on her part of which the 1st Defendant has had notice. The only plea in the written statement of the 1st Respondent is the allegations in Para 7 of the Plaint that this Defendant is aware of the contract is denied as false . Thus, it is found that there is no denial at all the plea that the Plaintiff was ready and willing to perform her part of the contract ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
