TMI Blog2016 (10) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... l position further clear by observing that, the effect of the Doctrine of Lis Pendens is not to annul the transfer, but only to render it subservient to the rights of the parties to the litigation. In other words, the section 52 in fact, does not have the effect of wiping out a transfer pendent lite altogether, but only subordinates it to the rights of parties based on the decree to the suit. As between the parties to the transfer, that is, the transferor and the transferee, transfer of the title is perfectly valid, and operates to vest the title of the transferor in the transferee. The words so as to affect the rights of any other party thereto under any decree or order which may be made therein make it quite clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. The Law Commission, therefore, in its report, after referring to the laws operating in the U.K. and other countries, recommended amendment in Section 18 of the Indian Registration Act, 1908, on the lines of the Bombay Amendment Act. In view thereof, the Rule of Lis Pendens now applies only when a notice of pendency of the suit, in which any right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of supervision conferred on a superior Court that the Courts subject to its supervision would confirm to the law laid down by it. Thus it is summarised as below:- i). Section 52 of TP Act does not provide adequate protection to the parties from transfers pendent lite. The question does lay down a correct proposition of law that, transferees pendent lite are not required to be or entitled as of right to be impleaded as parties to the suit, and they cannot resist execution proceedings in view of provisions of Order XXI Rule 100 of the Code, as amended by this Court. ii). Mere registration of notices of pending suit cannot secure for plaintiffs more than or even equivalent to what an injunction could secure, as the consequences of alienation in breach of interim injunction render such alienation illegal and expose the party to the consequences provided under Order XXXIX Rule 2A and Rule 11 CPC, in addition to the punishment for contempt of Court. Hence, such registration of notices of pending suit, though desirable as an additional safeguard, cannot be preferable or substituted to clamping an order of injunction on adversary. iii). Though it may not be inappropriate for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd cannot resist execution proceedings in view of provisions of Order XXI Rule 100 of the Code as amended by this Court ? (II) Would plaintiffs' registering notices of their suits under Section 18 of the Indian Registration Act (though such registration may not be compulsory) not secure for plaintiffs more than what an injunction could secure since transferees, who purchase property, pendente lite in spite of such registration would be deemed to have notice of pendency of the lis and could not claim to be transferees without notice ? And, would such registration not be preferable to clamping an injunction on adversary ? (III) Since a plaintiff seeking a temporary injunction is required to show that he would suffer irreparably if temporary injunction is not issued, would it be inappropriate to expect such plaintiff to show that the provisions of Section 52 of the Transfer of Property Act do not afford adequate protection before an injunction to restrain transfer pendente lite is issued ? (IV) Would it be appropriate, in cases of claims for temporary injunction to restrain transfers pendente lite, to consider imposition of conditions short of granting injunction, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the appellant has preferred this Appeal and sought an order of interim injunction seeking the same relief of restraining respondent No. 7 from creating third party interests in the suit property during the pendency of the Appeal. 4. When the Appeal came up for hearing before the learned Single Judge, he referred to his earlier Judgment in Kachhi Properties v. Ganpatrao Shankarrao Kadam Ors. 2010 (5) Bom.C.R. 43 and remarked that since the appellant had not made out a case that protection under Section 52 of the Transfer of Property Act, 1882, (for short, TP Act ), was not adequate, the appeal was liable to be dismissed. Thereupon, learned counsel for the appellant pointed out that in the case of Pralhad Jaganath Jawale Ors. v. Sitabai Chander Nikam Ors. 2011 (6) Bom.C.R. 619, another learned Single Judge of this Court [Coram : A.S. Oka, J.], after carefully considering the Judgment in Kachhi Properties (supra), had concluded that in view of binding precedents of the Apex Court, the observation in Kachhi Properties, that provisions of Order 39 Rule 1 of Code of Civil Procedure, 1908, (for short, CPC ), could be invoked only if protection provided by Section 52 of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e copious observations made by learned Single Judge in this Appeal, while referring these questions of law for decision before the Division Bench. The learned Senior Counsel for the Appellant has also taken us through the plethora of Judgments of the Hon'ble Supreme Court and this Court, which touch substantially or peripherally the controversy involved herein. Learned senior counsel for the appellant has further referred to the relevant provisions of Transfer of Property Act, 1882, Code of Civil Procedure, 1908, Civil Manual and, most importantly, the 157th Report of Law Commission of India, on Section 52 of the TP Act and its amendment. 9. It is in this backdrop that we have been called upon to decide the questions of law, which essentially pertain to the protection given under Section 52 of the TP Act against transfer pendente lite vis- -vis protection granted by order of temporary injunction and whether in view of such protection, the party can be entitled to get the relief of interim injunction against such transfer pendente lite. 10. To understand the exact nature of controversy and the circumstances in which these conflicting decisions in the cases of Kachhi Proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the TP Act. As on the same question again the arguments were advanced, the learned Single Judge took it as an opportunity to re-examine the question, as also the correctness of the logic of his own Judgment, in the case of Sharad Jamnadharji Mor (Supra). 14. Learned Single Judge then referred to the provisions of Section 52 of the TP Act, as amended by Bombay Act XIV of 1939, in reference to an amendment in Section 18 of the Registration Act introducing sub-section (ee). Learned Single Judge then also referred to the various decisions as follows:-- 1. Sharad Jamnadharji Mor v. Arjun Yeshwant Dhanwatey, 2009 (4) Bom.C.R. 523 (N.B.) 2. Nathaji Anandrav Patil v. Nana Sarjerao Patil, 1907(9) Bom.L.R. 1173 3. Bellamy v. Sabine, 1857 (1) De G. J. 585. 4. The Bishop of Winchester v. Paine, 1805 (11) Ves. 197. 5. Metcalfe v. Pulvertoft, 1813 (2) Ves. B. 204. 6. Landon v. Morris, 1832(5) Sim. 263. 7. Pramatha Nath Roy v. Jagannath Kishore Lal Singh Deo, 16 I.C. 359 : 1913(17) Cal.L.J. 427. 8. Smt. Muktakesi Dawn v. Haripada Mazumdar, AIR 1988 Cal 25. 9. Nagubai Ammal v. B. Shama Rao, 1956 DGLS (soft) 38 : AIR 1956 SC 593. 10. Jayaram Mudaliar v. Ayyasw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, but they pertain to only the doctrine of lis pendens, as contained in Section 52 of the TP Act. 16. Learned Single Judge found that the only Judgment which directly deals with the question of grant of temporary injunction in cases where plaintiff could have protection of Section 52 of the TP Act was, one of a Division Bench of the Calcutta High Court in Smt. Muktakesi Dawn (supra). Learned Single Judge reproduced para No. 4 of the said Judgment, which deals with the said question. 4. Mr. Roy Chowdhury has secondly urged that an injunction restraining the defendant from transferring the suit property was absolutely unnecessary as no post-suit transfer by the defendant can adversely affect the result of the suit because of the provisions of section 52 of the T.P. Act whereunder all such transfers cannot but abide by the result of the suit. It is true that the doctrine of lis pendens as enunciated in section 52 of the T.P. Act takes care of all pendente lite transfers; but it may not always be good enough to take fullest care of the plaintiff's interest vis- -vis such a transfer. The suit giving rise to the impugned order is one for specific performance of sale in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see that plaintiff makes out a case of irreparable loss and it is not for the defendant to prove that he would suffer if an injunction is issued. After plaintiff proves irreparable loss, comes the question of balance of convenience or rather balance of inconvenience, when the Court would enquire as to who would suffer greater inconvenience and decide whether injunction ought to be granted. 18. Then the learned Single Judge dealt with the Judgments in the cases of Kishorsinh Ratansinh Jadeja v. Maruti Corporation and Ors. 2009(11) SCC 229 and that of Sanjay Verma v. Manik Roy and Ors. 2006(13) SCC 608 and found that while dealing with the issue involved therein, as to whether the alienees pendent lite would be necessary or proper parties to the suit, the Supreme Court has held in the later Judgment of Sanjay Verma that if the alienation is without the permission or leave of the Court, the transferees have no right of impleadment. Hence, plaintiff would be under no obligation to chase the alienees or file proceedings against them. Alienees would not even be able to raise an obstruction in execution proceedings. Thus, the learned Single Judge held that protection afforded by Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... felt necessary to refuse injunctions to alienate on the ground that such claim is redundant in view of Section 52, there must be a good reason and so such a restraint may not now be imposed. Learned Single Judge felt that, it was, undoubtedly, a point to ponder and was pleased to observe that, in the face of judgments, which clearly hold that such transferees pendente lite have no right to be impleaded or to even obstruct the execution proceedings, wastage of judicial time in trial and appellate Courts on an utter redundancy, which may only give some mental solace to a plaintiff may have been tolerable in the past, but cannot be allowed to continue now with tremendous pressure on judicial time at all levels. Available time must be utilised judiciously by prioritizing cases where there are real disputes demanding Judge's time. The magnitude of the problem would become apparent from the fact that almost 25 such appeals, claiming injunctions in disregard of section 52 of the TP Act, have been lined up for adjudication today. Therefore, this argument of letting things be as they are cannot be accepted. 22. Learned Single Judge has, then, in para No. 30 of its Judgment, proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the case of Pralhad Jawale, another learned Single Judge of this Court had an occasion to deal with the same controversy, which was raised in the above said decision of Kachhi Properties. In this case, there were two appeals against the orders of the Trial Judge passed in two different suits rejecting the applications of the appellants/plaintiffs for temporary injunction, for restraining the respondent/defendant from creating third party interests in the suit property during pendency of the suit. The learned counsel for the respondents, while supporting the said orders, brought to the notice of the learned Single Judge that the impugned orders were in tune with the decision of this Court in Kachhi Properties. Thereupon, learned counsel for the appellants made detailed submission as to how the decision in the case of Kachhi Properties, apart from the fact that it does not lay down any proposition of law, it has also no binding effect, as the same has been delivered by ignoring the binding precedents and specific provisions of law. While advancing these submissions, learned counsel for the appellant placed reliance on several decisions of the Apex Court and this Court. 25. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotection offered by Section 52 of TP Act is not adequate to restrain transfers pendent lite. 28. Thereafter, referring to the legal effect of Section 52 of the Act, as illustrated in the decision of Sanjay Verma, which was considered in the case of Kachhi Properties also, the learned Single Judge held, in para No. 14, of his Judgment, that Section 52 of the TP Act does not put any restraint on a party to the suit from alienating the suit property, but only provides that the alienation will in no manner affect the rights of any party under any decree, which may be passed in the suit. Thus, such pendent lite transfer, even if effected without permission of the Court, is neither illegal nor void. 29. The reference was then made by learned Single Judge to the decision of the Supreme Court in the case of T.G. Ashok Kumar v. Govindammal and Anr. 2011(1) All.M.R. 462, wherein the Apex Court has noted certain deficiencies in Section 52 and made several suggestions, including a suggestion that registration of notice of lis pendens should be made compulsory. By placing reliance on the observations of the Apex Court, in para No. 10 of the said Judgment, learned Single Judge held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been made a party to the litigation. The learned Single Judge hence held that, in view of what is held by the Apex Court in the decision of Amit Kumar Shaw (supra), the last part of the observation in clause (a) of paragraph No. 30 of Kachhi Properties Judgment, that such transferee pendent lite cannot claim impleadment, cannot be read as a binding precedent. 32. The learned Single Judge then proceeded to decide whether Section 52 of the TP Act provides adequate protection to the parties from transfer pendent lite and was pleased to hold that the first part of clause (a) of paragraph No. 30 in Kachhi Properties decision, does not lay down an absolute proposition of law that in every case, a plaintiff will be adequately protected by Section 52 of the TP Act. The power to grant relief of temporary injunction under Rules 1 and 2 of Order XXXIX of the said Code is always discretionary. Therefore, in a given case, considering the facts of the case, the Court can always come to the conclusion that the plaintiff may get adequate protection by virtue of Section 52 of the TP Act. 33. While dealing with the last part of clause (c) of paragraph No. 30 in the decision of Kachhi Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered which includes creation of third party interests. In fact, the Apex Court in the case of Maharwal Khewaji Trust (supra) has observed that a defendant is required to make out a case that irreparable loss or damage will be caused to him during the pendency of the suit, if he is not allowed to alter the status quo. It is a well settled requirement of law that while exercising the powers under Rules 1 and 2 of Order XXXIX of the said Code, the Court has to consider the issues of prima facie case, irreparable loss and balance of convenience. In the circumstances, in view of the aforesaid binding precedents of the Apex Court, the observation in Clause (c) of paragraph No. 30 that the provision of Rule 1 of Order XXXIX could be invoked only if protection provided by section 52 is shown to be inadequate cannot bind this Court. Therefore, even the observation in first part of Clause (a) that section 52 provides adequate protection to the parties from transfers pendent lite cannot be read as a binding precedent. In any event, in view of the law laid down by the Apex Court, it cannot be said that provisions of section 52 of the said Act of 1882 in any manner put fetters on the powers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a binding precedent. In any event, in view of the law laid down by the Apex Court, it cannot be said that provisions of section 52 of the said Act of 1882 in any manner put fetters on the powers of Civil Court conferred by Rules 1 and 2 of Order XXXIX of the said Code. As stated earlier, in a given case, while exercising discretionary powers, the Court can always come to the conclusion in peculiar facts of the given case, that in view of provisions of section 52 of the said Act of 1882, equitable relief of temporary injunction need not be granted. Legal position discussed in present appeal by learned Single Judge while making Reference 37. It may be recalled that in this Appeal, when the matter was argued before the learned Single Judge [Coram : R.C. Chavan, J.] and learned Single Judge remarked that in view of his Judgment in Kachhi Properties (supra), the appellant/plaintiff had not made out a case that protection under Section 52 of the TP Act was not adequate and the Appeal was liable to be dismissed, learned counsel for the appellant brought to his notice the Judgment in Pralhad Jawale (supra). Thereupon, the learned Single Judge took a fresh look, or, rather, a secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mine and decide whether ethically they would like to be parties to an expedition of making the clients seek an illusory protection at substantial cost and expense in the trial as well as appellate Courts . 39. The learned Single Judge felt that, this question assumes importance in the light of the fact, which, in fact, should not require any expert opinion that the Courts are over-burdened with work and, therefore, cannot pay adequate attention to the genuine problems, which litigants place before the Courts. After quoting extensively from the research paper of Dr. Arun Mohan, a senior advocate from the Supreme Court, learned Single Judge posed a question as to why Courts cannot think of avoiding mindless litigation, which serves no purpose, and, in his view, applications for injunction to restrain creation of third party interest is one such specie of this type of litigation. He further added, as was done in Kachhi Properties, that there could always be cases, where litigant may satisfy the Court of the necessity of seeking such injunction, by pointing out that the protection provided by Section 52 of the TP Act is not adequate. 40. The learned Single Judge then also refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affords adequate protection, which view has not found favour with the Hon'ble Judge deciding Pralhad, it may be appropriate to have the matter referred to a larger Bench rather than committing judicial indiscipline of taking a different view. 42. The learned Single Judge also felt that this is necessary since a Division Bench of this Court in Vasant Tatoba Hargude Ors. v. Dikkaya Muttaya Pujari AIR 1980 Bombay 341, holds that Judgment later in point of time would be binding in case there is a conflict in the Judgments of Courts of equal strength. According to learned Judge, this leads to a piquant situation, as after the Judgment in Pralhad, another learned Judge of this Court, deciding Rafique Barkatulla Khan v. Shahenshah 2011 (3) Mah. L.R. 732, which is later in point of time, has followed the decision in Kachhi Properties . 43. In the light of all these facts, circumstances and legal position, the learned Single Judge formulated the questions, reproduced in paragraph No. 1 above, for decision to a Division Bench and that is how the matter came to be placed before us. Our Discussion on Legal Position 44. Thus, after carefully considering the legal position, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple on which the Doctrine of Lis Pendens rests. It was observed by the Privy Council that, the Doctrine of Lis Pendens, with which section 52 of the Act of 1882 is concerned, is not as Turner L.J. observed in Bellamy v. Sabine founded upon any of the peculiar tenets of a Court of Equity as to implied or constructive notice. It is ........ a doctrine common to the Courts both of law and of equity, and rests ....... upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail. The correct mode of stating the doctrine, as Cranworth L.C. observed in the same case, is that pendent lite neither party to the litigation can alienate the property in dispute so as to affect his opponent. 49. In the cases of Jayaram Mudaliar and Rajendar Singh (supra), the Hon'ble Supreme Court has quoted the definition of Lis Pendens , as given in the Corpus Juris Secundum , as the expression of the principle of the maxim ut lite pendente nihil innovetur (pending litigation nothing new should be introduced). On that basis, the Hon'ble Supreme Court defined Lis Pendens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arain Singh v. Nawab Singh, AIR 1957 Patna 729 at 731). A transfer or a dealing by a party to a suit during the pendency of the suit or proceeding is not, ipso facto void. It only cannot affect the rights of any other party to the suit under any decree or order that may be made in the suit or proceeding. [Emphasis Supplied] 53. This position is affirmed by the Supreme Court in the case of Nagubai v. B. Sharma Rao (supra) by observing that, the effect of Section 52 of the TP Act is not to wipe out the sale made pendent lite but to subordinate it to the rights based on the decree in the suit . [Emphasis Supplied] 54. While explaining the rationale behind Section 52 of the TP Act, the Law Commission Report, in paragraph No. 3.11, observed that; The rationale underlying section 52 is simple enough and easily intelligible. If a party against whom relief is claimed were to be allowed to transfer his right pendente lite, then the plaintiff would be indirectly compelled to make the transferee a party to the litigation. If the first transferee is himself free to transfer his own right, then (on such a transfer), the plaintiff would be indirectly compelled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely to actual transfers of rights, which are subject matter of litigation, but to other dealings with it by any party to the suit or proceedings, so as to affect the right of any other party thereto. 56. The Law Commission, therefore, in its report, after referring to the laws operating in the U.K. and other countries, recommended amendment in Section 18 of the Indian Registration Act, 1908, on the lines of the Bombay Amendment Act. In view thereof, the Rule of Lis Pendens now applies only when a notice of pendency of the suit, in which any right to involve property is directly and specifically in question, is registered under Section 18(ee) of the Registration Act. The Law Commission, accordingly, suggested corresponding amendment in Section 52 of the TP Act, on the lines of Bombay Amendment Act XIV of 1939. 57. As far as State of Maharashtra is concerned, as observed by the Law Commission in its Report, the provisions of Section 52 of the TP Act already stand amended by Bombay Act XIV of 1939. They read as follows: 52. Transfer of property pending suit relating thereto.-- (1) During the pendency in any Court having authority within the limits of India excluding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Clause (ee) to provide for registration of notices of pending suits as follows:-- Section 18 of the Registration Act, 1908 S. 18 Document of which registration is optional Any of the following documents may be registered under this Act, namely: (a) Instruments (other than instrument of gift and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees, to or in immovable property; (b) Instruments acknowledging the receipt or payment of any consideration of account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; (c) Leases of immovable property for any term not exceeding one year, and leases exempted under Section 17; (cc) Instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future any right title or interest, whether vested or contingent, or a value less than one hundred rupees, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty or right. (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise as the Court thinks fit. 61. In this context, it is also necessary to reproduce Rule 2A and 11 of Order XXXIX CPC, which deals with the consequences of non-obedience of Court's order of interim injunction. 2A. Consequence of disobedience or breach of injunction- (1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his relea se. (2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee where such transfer was made during the pendency of the suit or execution proceedings, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term, which may extend to thirty days. The Court may also order the person or persons whom it holds responsible for such resistance or obstruction to pay jointly or severally in addition to costs, reasonable compensation to the decree-holder or the purchaser, as the case may be, for the delay and expenses caused to him in obtaining possession. Any order made under this rule shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. (As substituted by the Bombay Amendment of 1983). Rule 100 in Order XXI of CPC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any party to the suit or proceeding so as to affect the rights of any other party thereto. However, the crucial words are under any decree or order, which may be made therein . Such transfer cannot be except under the authority of the Court and on such terms, as it may impose. An Explanation has been added so as to explain what is meant by pendency of the suit or proceeding. We have already explained the ambit and scope of this provision. However, it must be understood that it operates to cover transfer of property pending suit. It deals with both, transfer or otherwise dealing with, and if that affects the rights of any party to the suit and is made, except under the authority of the Court and on such terms, as it may impose, then, that alone is impermissible. 65. Order XXXIX of CPC provides for grant of temporary injunctions and interlocutory orders. Order XXXIX Rule 1 provides for cases in which temporary injunction may be granted and Order XXXIX Rule 2 provides for injunction to restrain repetition or continuance of breach. The injunction under Order XXXIX Rule 2 can be granted for restraining the defendant from committing a breach of contract or other injury of any kind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In comparison to Section 52 of the TP Act, which deals with any suit or proceeding in which any right to immovable property is directly and specifically in question, the immovable property in regard to which the right is directly and specifically in question cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the right of any other party thereto; Order XXXIX Rule 1 speaks of any suit and by sub-clauses (a) to (c), takes care of a situation where any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree. Therefore, it is not restricted to only a right in immovable property. Secondly, it takes care of a situation where defendant to the suit threatens or intends to remove or dispose of his property with a view to defrauding his creditors. Lastly and importantly, it takes care of a threat of the defendant to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit. Therefore, it is not a situation only of transfer of immovable property, which is dealt with in Rule 1 of Order XXX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clarifies that injunction to Corporation binds its officers, whose personal action it seeks to restrain. 71. By Order XXXIX Rule 6, the Court is empowered to make interlocutory orders and which are not of injunction, but permitting sale of any movable property, being the subject-matter of such suit or attached before Judgment in such suit; if that is subject to speedy and natural decay, or if that is required for any other just and sufficient cause, which makes it desirable to have it sold at once. Order XXXIX Rule 7 permits, detention, preservation, inspection etc. of subject-matter of the suit and interlocutory order can be made in that behalf. How such orders have to be made is provided by Rule 8. By Order XXXIX Rule 9, party may be put in immediate possession of land, the subject-matter of the suit. Therefore, where land of the nature and categories specified in Order XXXIX Rule 9 is the subject-matter of a suit, then, in the eventuality set out and specified in Order XXXIX Rule 9, such property can be immediately put in possession of any other party to the suit claiming to have an interest therein. By Order XXXIX Rule 10, an interlocutory order in a suit for money or some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injunction and interlocutory orders slows down the speed and pace in delivery of justice. Once the power to grant injunction is discretionary and sound and not uncontrolled, unrestricted or unbridled, then, there is no reason to be unnecessarily apprehensive. There are inbuilt checks and safeguards in the system and in the law itself to prevent any abuse of these discretionary powers by the parties and an arbitrary, erroneous and illegal exercise of the discretion by the Court. 75. As held in the case of Vareed Jacob v. Sosamma Geevarghese and Ors. AIR 2004 SC 3992, the source of power of the court to grant interim relief is under Section 94. However, exercise of that power can only be done if the circumstances of the case fall under the rules. Therefore, when a matter comes before the court, the Court has to examine the facts of each case and ascertain whether the ingredients of Section 94 read with the rules in an order are satisfied and accordingly grant an appropriate relief. It is only in cases where circumstances do not fall under any of the rules prescribed that the Court can invoke its inherent power under Section 151 CPC. Accordingly, the courts have to grant relief o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l v. Ganesh Ram, AIR 1970 SC 1717, which referred the earlier decision in Samarendra Nath Sinha v. Krishna Kumar Nag, AIR 1967 SC 1440, that the purchaser pendent lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. 80. In para No. 29 of its Judgment, the Apex Court also reaffirmed the legal position relating to Section 52 of the TP Act, as considered by it in Rajender Singh (supra), in which the Supreme Court, with approval of the principles laid down in Jayaram Mudaliar (supra), reiterated that; 15. The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject-matter of litigation from the ambit of the court's power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during a litigation over it are held to be bound, by an application of the doctrine, by the decree passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit will be subject to the decision in the suit. [Emphasis Supplied] 84. Then Hon'ble Supreme Court observed that, the decision in the case of A. Nawab John v. V.N. Subramaniyam, (2012) 7 SCC 738, is a recent reminder of the principle of law enunciated in the earlier decisions, as in that case the Court summed up the legal position thus:-- 18. ...... '12. ....... The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court. [Emphasis Supplied] 85. The Hon'ble Supreme Court then was pleased to finally refer to its decision in Jayaram Mudaliar (supra), in which the observations made on the Doctrine of Lis Pendens in Commentaries on the Laws of Scotland, by Bell, are extracted with approval, in paragraph No. 43, as follows:-- 43. ..... Bell, in his Commentaries on the Laws of Scotland said, that it was grounded on the maxim : Pendent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It also does not make such transaction void ab-initio, nor the transfer ineffective. It only makes the alienation subservient to the decision of the Court. As it does not contemplate the Court passing any order of restraining the party to the suit from alienating the said property, the party, thus, alienating the property during pendency of the litigation does not incur any consequences for breach of any order of the Court. 89. Thus, the object of Section 52 of the TP Act is merely to make the alienation subservient to the decision of the Court and not to restrain the parties from entering into it or making it void, ab-initio or illegal or making the party subject to consequences for breach of order of the Court. Thus, the effect of the Doctrine of Lis Pendens is not to annul the conveyance, but only to render it subservient to the rights of the parties to the litigation. As held by the Apex Court in the case of Sanjay Verma (supra), the principle underlying Section 52 of TP Act is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitting such breach is defendant, then his defence is liable to be struck off. 94. The provisions of the Contempt of Courts Act, 1971 also lay down the consequences for committing the breach of any order passed by the Court, including the order of interim injunction, and such consequences again provide for punishment for contempt of Court. 95. Thus, it is not only the purport, import and object of Order XXXIX Rule 1 and 2 of CPC of granting the relief of interim injunction restraining the other party from creating third party interest in the property pending the suit, is different than that of the Principle of Lis Pendens contained in Section 52 of TP Act, but even the consequences for the breach of such order are different, as it may entail into punishment, which consequences are not at all contemplated under Section 52 of TP Act. 96. Moreover, as against the transfer made pendent lite, the transfer made in violation of injunction order is held to be no transfer in the eyes of the law. The legal position in this respect is well settled that, if any property is alienated in the face of order of interim injunction passed by the Court, such alienation becomes ipso facto il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Harbans Singh Ors., 1995 (6) SCC 50, wherein the Hon'ble Supreme Court was pleased to observe as follows:-- 23. .................. In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right to treat the alienation/assignment as having not taken place at all for its purposes. Once that is so, Pritam Singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees-respondents could not have been impleaded by the trial Court as parties to the suit, in disobedience of its orders. The principles of lis pendens are altogether on a different footing. We do not propose to examine their involvement presently. All that is emphasized is that the assignees in the present facts and circumstances had no cause to be impleade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there was a bar to such a sub-lease under the terms of the status qua order. It has the effect of violating the preservation of status of the property. This will all the more be so when this was done without the leave of the Court to disturb the state of things as they then stood. It would amount to violation of the order. The principle contained in the maxim : Aactus Curiae Neminem Gravatt has no application at all to the facts of this case when in violation of status qua order a sub-tenancy has been created. Equally, the contention that even a trespasser cannot be evicted without recourse to law is without merit, because the state of affairs in relation to property as on 15-9-1988 is what the Court is concerned with. Such an order be circumvented by parties with impunity and expect the Court to confer its blessings. It does not matter that to the contempt proceedings Somani Builders was not a party. It cannot gain an advantage in derogation of the rights of the parties, who were litigating originally. If the right of sub-tenancy is recognized, how is status qua as of 15-9-1988 maintained? Hence, the grant of sub-lease contrary to the order of status-quo is clearly illegal. All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers therein that, the order of injunction will bind only the transferor and not the world at large, as ownership rights are neither taken away nor restricted in any manner by order of injunction or other preventing directions. It was held that, the order of injunction reaches and touches a party to the lis. Hence, when during pendency of an order of injunction, immovable property, which is subject-matter of restraint or injunction, is transferred, there is no choice but to declare the transaction as illegal. [Emphasis Supplied]. 104. It was further held that, an order issuing interlocutory injunction is issued with a view to preserve and protect the status-quo during the pendency of litigation. The true effect of such an order is, therefore, preservation of status-quo prevailing as on the date of issuance of the order. Any alteration in the status qua as prevailing and directed to be maintained by the Court of law is not permissible except with leave or sanction of Court. It is well settled that if courts are not to honour and implement their own orders and encourage party litigants, be they public authorities, to invent methods of their own to short circuit and giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also different consequences. The transaction made in breach of injunction order is apparently and patently illegal and binds no party, even the purchaser. Whereas, transaction effected during lis pendens does not attract the taint of illegality. It remains legal, valid and binding on the parties, subject to the outcome of the litigation. It also does not entail the consequences of penalty or contempt, as there is no order passed by the Court in Doctrine of Lis Pendens. 109. As a result, from the perspective of litigating parties also, the Doctrine of Lis Pendens and Order of Temporary Injunction have different effects. The apprehension of action under Section 2A Rule 11 of CPC of attachment of property and the punishment of contempt of courts act as deterrent to the party against whom order of injunction is running. This deterrent has the further effect of avoiding multiplicity of transactions and proceedings. The Doctrine of Lis Pendens does/cannot create such deterrent effect as it does not entail drastic consequence of attachment of property, detention in civil prison, suit being dismissed or defence being struck off, as the case may be, or punishment for contempt of cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only to the properties situate wholly or partly in the city of Mumbai. The substituted Section 52 of the TP Act, which deals with the registration of the notice of pendency of the suit, can apply to the other areas only when the notification to that effect is issued under Section (2) of the said Act. It is, admittedly, not in dispute even till date that there is no such notification issued making applicable the substituted Section 52 of the TP Act to other parts of the State of Maharashtra. Furthermore, even the substituted Section 52 of the TP Act, would apply even in respect of immovable properties in the city of Mumbai, only in a case where the notice of pendency of suit or proceedings is registered under the Indian Registration Act. Though by the provision of the said Amendment Act XIV of 1939, in Section 18 of the Registration Act, clause (ee) has been added, it provides that registration of notices of pending suits or proceedings referred to in Section 52 of the TP Act is only optional. 113. Thus, the Legislature, has not made registration of notice of lis pendens compulsory under the Registration Act. Non-registration of a document governed by Section 18 of the Registrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this proposition of law, as laid down by the learned Single Judge, while framing question No. 1 for reference, itself is not based on correct legal position, in view of the various decision of the Apex Court. 118. The decision directly on this point is of Amit Kumar Shaw v. Farida Khatoon, (2005) 11 SCC 403, wherein the Apex Court had an occasion to consider the effect of Section 52 of TP Act in the context of the provisions of Rule 10 of Order I; Rule 10 of Order XXII; and Section 146 of the Code and it was held as under:-- 16. The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendent lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendent lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty was purchased by the appellant. Appellant then filed an application for impleadment under Order I Rule 10 CPC in a suit for specific performance of contract. The Division Bench of Delhi High Court rejected the said application, affirming the order of the learned Single Judge. Hence, the appellant approached the Supreme Court. The exact question, which fell for consideration in this decision, therefore, before the Apex Court was, as to whether the appellant, who is the transferor pendent lite, having notice and knowledge about pendency of the suit for specific performance and order of injunction, can be impleaded as party under Order I Rule 10 CPC on the basis of Sale Deed executed in his favour by the defendant? 121. While answering this question, the Hon'ble Supreme Court referred to its number of earlier decisions in the cases of Anil Kumar Singh v. Shivnath Mishra, (1995) 3 SCC 147; Surjit Singh v. Harbans Singh, (1995) 6 SCC 15; Savitri Devi v. District Judge, Gorakhpur, (1999) 2 SCC 577; Vijay Pratap v. Sambhu Saran Sinha, (1996) 10 SCC 53; Kasturi v. Iyyamperumal, (2005) 6 SCC 733; and Vidur Impex and Traders (P) Ltd. v. Tosh Apartments (P) Ltd., (2012) 8 SCC 384, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to be joined as a party to the suit to enable him to protect his interest. 125. In view of this legal position, there cannot be any blanket proposition that transferees pendent lite are not required to be or entitled to be, as of right, impleaded as parties to the suit. Everything depends on the interest in the property, which such transferee has acquired during pendency of the litigation. If the interest is substantial, then, as held by the Apex Court, he becomes entitled to be impleaded as party to the suit. In that situation, he may also become entitled to resist the execution proceedings. His claim cannot be thrown out merely because Order XXI Rule 100 CPC, as amended by this Court, states that the obstruction raised by transferee pendent lite need not be considered and his application deserves to be straightway dismissed. Therefore, further proposition of law laid down by learned Single Judge in formulating question No. 1 that Rule 100 leaves no discretion to the executing Court and provides that application by transferee pendent lite shall be rejected; cannot be treated as laying down correct legal position. It would always be a question of fact situation in such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granting relief of temporary injunction, as Section 52 conspicuously lags behind in granting such protection or making improvement therein by spending huge amount. 129. In our considered opinion, the learned Single Judge in the case of Prakash Jawale (supra) has considered in its proper perspective all these aspects and after referring to the provisions of Order XXXIX Rule 1 and 2 of the CPC, the learned Single Judge has rightly held in Prakash Jawale's case that, the power to grant relief of temporary injunction under these provisions is always discretionary and, therefore, in a given case, considering the facts of the case, the Court can always come to the conclusion that the plaintiff may get adequate protection by virtue of Section 52 of TP Act. But calling upon the plaintiff in each and every case to show that the protection granted under Section 52 of the TP Act is not adequate and thereafter only to pass the order of injunction, will be totally against the settled principles under which the order of interim injunction is passed. It is a well settled requirement of law that while exercising the powers under Rules 1 and 2 of Order XXXIX CPC, the Court has to consider t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to the pending suit, or requiring the party to inform the Court promptly of creation of every such interest', in our considered opinion, the Court can always, in appropriate cases, impose such conditions. Those conditions, at times, may be in addition to or as part of the order of temporary injunction. However, mere imposition of such conditions cannot dispense with the effective relief of temporary injunction. As a matter of fact, the imposition of condition, like, seeking an undertaking that no equities would be claimed on account of sale or development of properties, is merely in the nature of the principle of lis pendens. Similarly, directing conditions of effecting a sale only after putting transferees to notice or requiring the party to inform the Court promptly of creation of every such interest, are in the same nature which are covered under the Doctrine of Lis Pendens. Merely requiring the other party to inform the Court promptly of creation of every such interest, cannot solve the plaintiff's difficulty in getting the property, because, then, such party would have to be impleaded in the suit. Even calling upon the party to effect sale only after putting transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resources of the Courts, in our view, the Court cannot call the litigation as 'mindless', merely because there may be some other provisions also in which some relief can be granted. Once it is held that the very object, scope and effect of the provisions of Section 52 of the TP Act and Rules 1 and 2 of Order XXXIX of CPC is different and they operate in two different fields and in such situation, Section 52 of TP Act does not afford adequate and effective protection, as is afforded by Order XXXIX Rule 1 and 2 CPC, then the litigation in the nature of applications for temporary injunction, cannot be called as 'mindless litigation'. It is not simplicitor a case that, the order of injunction only gives an advantage to the legal profession in making the clients go in for this illusory remedy and it is for those in the profession on either side of Bar, to examine and decide whether ethically they would like to be parties to an expedition of making the clients seek an illusory protection at substantial cost and expense in the trial as well as Appellate Courts , as observed by the learned Single Judge. But, it is a matter of making available the protection, which is give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to exercise the discretion vested in the Court by law or putting additional fetters on that discretion, which the Legislature in its wisdom not deemed it fit to impose, even when both these provisions of lis pendens and temporary injunction co-exist together for years and even when in its 157th Report devoted specifically to the Doctrine of Lis Pendens , the Law Commission has made certain suggestions for amendment to Section 52 of TP Act, but not on this score. It is pertinent to note that in its Report, the Law Commission has also considered the provisions of temporary injunction in the light of the Doctrine of Lis Pendens, but did not find it necessary to consider the provisions of temporary injunction as redundant in view of Doctrine of Lis Pendens, nor put any additional fetter on grant of temporary injunction, as suggested by the learned Single Judge. 135. The learned Single Judge, in this case as well, dealt with the question, as to whether the order of interim injunction would be akin to Mareva injunction, which operates in rem. Learned Single Judge then referred to the decision of the learned Single Judge in the Court of Appeal in (Z Ltd. v. A)18, (1982) 1 All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who seem to have accepted that Section 52 of the TP Act affords adequate protection, which view has not found favour with the Hon'ble Judge deciding Pralhad, it may be appropriate to have the matter referred to a larger Bench rather than committing judicial indiscipline of taking a different view . 139. Learned Single Judge also felt it necessary since a Division Bench of this Court in Vasant Tatoba Hargude and Others v. Dikkaya Muttaya Pujari (AIR 1980 Bombay 341), holds that judgment later in point of time would be binding in case there is a conflict in the judgments of Courts of equal strength. 140. As the question No. 5 is formulated in the context of the observations made in paragraph No. 13 of Vasant Hargude's Judgment (supra) and which are quoted by learned Single Judge, they may be reproduced as follows:-- 13. The contention of Mr. Rane as to the competency of the later Bench of three Judges to overrule the ratio of the earlier Bench of equal number of Judges need not detain us. In the event of there being clear conflict, the decision of such later Bench would be binding on us. Secondly, the decision in Anand Nivas case (AIR 1965 SC 414) is based not so m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the observation in para (13) of the Judgment in Vasant Tatoba Hargude and Others v. Dikkaya Muttaya Pujari (AIR 1980 Bombay 341), that in the event of there being conflict, the decision of later Bench would bind only lays down that judgment later in point of time as explaining the earlier judgment would bind? 143. In our considered opinion, so far as the Law of Precedent is concerned, it is undisputable that it's very premise lies in judicial discipline and in certainty of legal position. The judicial discipline requires that the Judgment rendered by higher Courts be binding on subordinate Courts, whereas certainty of legal position requires that the Judgment rendered earlier in point of time would bind successive Courts. 144. As to what is binding of the earlier decision, it is well-settled that it is only the ratio decidendi that has a precedent value. As observed by the Supreme Court in S.P. Gupta Ors. v. President of India Ors. AIR 1982 SC 149, It is elementary that what is binding on the court in a subsequent case is not the conclusion arrived at in a previous decision, but the ratio of that decision, for it is the ratio which binds as a precedent and not the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 971) 1 SCC 85, that, It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment. 149. It is thus clear that it is only the ratio decidendi of a case which can be binding and not the obiter dictum. Obiter, at best, may have some persuasive efficacy, though, as far as pronouncements of Supreme Court are concerned, as per settled position of law, even its obiter dicta is also binding on High Courts and subordinate Courts. 150. The question as to whose decisions are binding, Article 141 of the Constitution, provides that, the law declared by the Supreme Court shall be binding on all courts within the territory of India. 151. It is also well-settled that though there is no specific provision, like, Article 141 of Constitution making the law declared by the High Court binding on subordinate courts, it is implicit in the power of supervision conferred on a superior Court that the Courts subject to its supervision would confirm to the law laid down by it. It is in that view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Judgment, in paragraph No. 100, while regretting to express his inability to agree with Brother Katju, J., in regard to the criticism of various orders passed in this case itself by other Benches, Justice S.B. Sinha, J. observed that; I am of the opinion that it is wholly inappropriate to do so. One Bench of this Court, it is trite, does not sit in appeal over the other Bench particularly when it is a coordinate Bench. It is equally inappropriate for us to express total disagreement in the same matter as also in similar matters with the directions and observations made by the larger Bench. Doctrine of Judicial Restraint, in my opinion, applies even in this realm. We should not forget other doctrines which are equally developed viz. judicial discipline and respect for the Brother Judges. 155. Learned counsel for the appellant has also relied, in this context, on the decision of this Court in Panjumal Hassomal Advani v. Harpal Singh Abnashi Singh AIR 1975 BOMBAY 120, wherein Division Bench of this Court was pleased to observe that, now, it is well-settled that normally one Division Bench of a High Court cannot take a view contrary to the decision given by another Bench o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has actually been decided. The decision therefore, would not lose its authority, merely because it was badly argued, inadequately considered or fallaciously reasoned . The case must be considered, taking note of the ratio decidendi of the same i.e., the general reasons or the general grounds upon which, the decision of the court is based, or on the test or abstract, of the specific peculiarities of the particular case, which finally gives rise to the decision. 159. This being the legal position of judicial discipline and hierarchy, there can be no dispute that a larger bench decision will prevail over a smaller bench decision and one Bench of the High Court or Supreme Court cannot and does not sit in appeal over the other Bench, particularly when it is a Co-ordinate Bench. However, despite that, the fact remains that there are, at times, conflicting decisions of Co-ordinate Benches of the same Court. The reasons being myriad, like, the decision of earlier Bench not brought to the notice of the later Bench and so on. Hence, the real difficulty arises in case of the conflicting Judgments on a particular point by co-equal Benches. This difficulty arises, especially, to the Tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed and must have pre-eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior court are of co-equal benches and therefore of matching authority, then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extent, then both of them cannot be binding on the courts below. Inevitably a choice though a difficult one has to be made in such a situation. On principles, it appears to me that the High Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of co-equal Benches of the Superior Court are earlier or later is a consideration which appears to me as hardly relevant. [Emphasis Supplied] 164. In coming to the above-said conclusion, the Apex Court placed reliance on few decisions of Courts in England, like, Hampton v. Holman (1877) 5 Ch D 183, (Jessel M.R.), Miles v. Jarvis (1883) 24 Ch D 633, (Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther . 168. In the words of Supreme Court, we are inclined to think that no blanket proposition can be laid down either in favour of the earlier or the later decision . 169. The Special Bench of the Calcutta High Court in Bholanath v. Madanmohan AIR 1988 Cal. 1, has also, after relying on the Judgment of the Supreme Court in Atma Ram's case (supra), held that, the subordinate court would have to prefer one to the other and not necessarily obliged, as a matter of course, to follow either the former or the later in point of time, but must follow that one, which, according to it, is better in point of law. As old may not always be the gold, the new is also not necessarily golden and ringing out the old and bringing in the new cannot always be an invariable straight-jacket formula in determining the binding nature of precedents of co-ordinate jurisdiction. 170. This Court has also in its Full Bench decision in Kamleshkumar Ishwardas Patel v. Union of India and Ors. 1995 (2) Bom.C.R. 640, expressed unqualified concurrence with the law, as enunciated in the Special Bench decision of Bholanath (supra). 171. To some extent, this conflict was tried to be resolved by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the later Bench of equal strength, in which case the later decision is binding...... No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision is binding in all circumstances, or the High Courts and Subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. [Emphasis Supplied] 174. As a matter of fact, this issue should no more detain us, as in the recent decisions, the Apex Court has settled this controversy by laying down in unequivocal terms that earlier decisions of co-equal Benches are binding on later Benches of the same size. In the case of State of U.P. and Ors. v. Ajay Kumar Sharma and Anr., the Hon'ble Supreme Court was, in paragraph Nos. 10 and 11, pleased to observe as under:-- 10. Time and again this Court has emphatically restated the essentials and principles of 'Precedent' and of Stare Decisis which are a cardinal feature of the hier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of 2002, as the 2005 Bench was bound by the view taken by earlier three-Judge Bench, the view expressed by 2002 Bench, being earlier in point of time, is required to be followed. 176. In view of this principle laid down by the Hon'ble Supreme Court that, Co-ordinate Bench is bound by the view taken earlier by the co-equal or Co-ordinate Bench. Unless the view held by earlier Bench is per incuriam, such a binding Judgment of earlier Bench cannot be ignored or brushed aside. It has to be followed, as judicial discipline demands that there is a certainty in the views expressed by the Courts. The principle of finality and certainty of Judgments demands that the opinions and views expressed therein should not be altered or changed frequently and without any reason. Finally, in the event a situation emerges where two Judgments rendered by the Benches of equal strength are irreconcilable in their views, then, it is not the later, but the earlier one in point of time, which should be followed and applied by the Subordinate Courts to the facts and circumstances of a case before it. Considering that the view now taken by the Hon'ble Supreme Court is that, the later Judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... safeguard, cannot be preferable or substituted to clamping an order of injunction on adversary. Question No. (III) : Since a plaintiff seeking a temporary injunction is required to show that he would suffer irreparably if temporary injunction is not issued, would it be inappropriate to expect such plaintiff to show that the provisions of Section 52 of the Transfer of Property Act do not afford adequate protection before an injunction to restrain transfer pendente lite is issued? Answer : Though it may not be inappropriate for the Court to expect the plaintiff to show that the provisions of Section 52 of TP Act do not afford adequate protection, it cannot laid down as a blanket proposition of law that in each and every case, plaintiff is expected to show it as a condition precedent for grant of injunction order. Question No. (IV) : Would it be appropriate, in cases of claims for temporary injunction to restrain transfers pendente lite, to consider imposition of conditions short of granting injunction, which should protect the plaintiff's interest, like, seeking an undertaking that no equities would be claimed on account of sale or development of properties; effec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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