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Report No. 157

Chapter IV

Section 52 and Allied Provisions

4.1. Applicability of section 52 does not depend on any attachment of a property which may be ordered by the court. In fact, it is ineffective against the doctrine of lis pendens1. It may, however, be pointed out that transfer of property during the pendency of the proceedings are barred under section 64 of the Code of Civil Procedure de hors section 52 of the Transfer of Property Act, which provides as follows:-

"64. Private alienation of property after attachment to be void.-Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.

Explanation.-For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets."

1. Kedarnath v. Sheonarain, AIR 1970 SC 1717.

4.2. While considering the true Import and scope of this section, the Supreme Court in Nancy John Lyndon v. Prabhati Lal, AIR 1987 SC 2060, observed that even if it is doubtful as to whether an order for restoration of the suit or execution, application dismissed for default would have the effect of restoring attachment levied in execution retrospectively so as to affect alienations made during the period between dismissal of the suit or execution and the order directing restoration, it is quite clear that an order of restoration would certainly restore or revive attachment for the period during which it was in subsistence, namely, prior to the dismissal of the suit or execution application.

As such where the sale by the judgment-debtor of the property attached in execution was effected during the subsistence of the judgment and before the case was dismissed for default, it would be incorrect to say that by reason of the dismissal of the execution case, the attachment came to an end and the order for restoration of the execution case would not affect any alienation made before the restoration although such alienation have been made during the subsistence of the attachment.

4.3. Section 64 of the Civil Procedure Code puts a complete ban on alienation of property after attachment. Under the section where an attachment has been made, any private alienation or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.

In M/s Supreme General Films Exchange Ltd. v. Brijnath Singhji Deo, AIR 1975 SC 1810, lease of a theatre executed during the attachment was upheld to have been struck by the doctrine of lis pendens and also by provisions of section 64 of the Civil Procedure Code. While considering the inter-relationship of section 52 of the Transfer of Property Act and section 64 of the Civil Procedure Code, the Supreme Court observed as follows:-

"18. The contention that the case fell outside the purview of section 52 of the Transfer of Property Act as the lease was executed in purported satisfaction of an antecedent claim rests upon the terms of an agreement of 1948, embodied in a letter, on the strength of which the defendant-appellant had filed his suit for specific performance. We find that the terms of the compromise decree in that suit and lease-deed of 1956 purported to confer upon the defendant-appellant new rights. Indeed, there are good grounds for suspecting that the compromise in the suit for specific performance was adopted as a device to get round legal difficulties in the execution of the lease of 1956 in favour of the defendant-company.

We are unable to accept the argument, sought to be supported by the citation of Bishan Singh v. Khazan Singh, 1959 SCR 878: AIR 1958 SC 838, that the lease was merely an enforcement of an antecedent or pre-existing right. We think that it purported to create entirely new rights pendente lite. It was, therefore, struck by the doctrine of Us pendens, as explained by this court in Jayaram Mudaliar v. Ayyaswami, (1973) 1 SCR 139: AIR 1973 SC 569, embodied in section 52 of the Transfer of Property Act.

19. An alternative argument of the appellant was that a case falling within section 65A(2)(e) of the Transfer of Property Act, confining the duration of a lease by a mortgagor to three years, being a special provision, displaces the provisions of section 52 of the Transfer of Property Act. This argument overlooks the special objects of the doctrine of lis-pendens which applies to a case in which litigation relating to property in which rights are sought to be created pendente liteby acts of parties, is pending.

Moreover, for the purpose of this argument, the defendant appellant assumes that the provisions of section 65A(2)(e), Transfer of Property Act are applicable. If that was so it would make no substantial difference to the rights of the defendant-appellant which would vanish before the suit was filed if section 65A applies. We, however, think that as the special doctrine of Lis pendens is applicable here, the purported lease of 1956 was invalid from the outset. In this view of the matter, it is not necessary to consider the applicability of section 65A(2)(e) which the defendant-appellant denies, to the facts of this case.

20. As regards the applicability of section 64, Civil Procedure Code, we find that parties disagree on the question whether the attachment made by the Central Bank on 20-4-1955, in execution of the decree of which the plaintiff-respondent was the assignee existed on the date of the impugned lease of 30-3-1956. Learned Counsel for the appellant relied upon the terms of an order recorded on the order sheet, in the court of Additional District Judge, Jabalpur in Civil Suit No. 3B of 1952 on 25-1-1956 showing that in view of the stay order received from the High Court execution could not proceed.

The order sheet, however, also contains the enigmatic statement that execution was dismissed as infructuous but the attachment was to continue for six months. The High Court had treated the last part of the statement in the order sheet as void and ineffective presumably on the ground that the Additional District Judge had no jurisdiction either to lift the attachment or to dismiss the execution proceedings after the High Court had given its order staying all further action in execution proceedings.

The terms of the High court's order are not evident from anything placed before us. On the other hand, learned counsel for the plaintiff-respondent relies upon a subsequent order of the same court passed on 30-4-1960 in the same suit. This order shows that a compromise had been arrived at between the decree holder and the judgment-debtor under which the decree holder had agreed to lift attachment of property except with regard to Plaza Talkies which was to continue.

We are, therefore, unable to hold that the concurrent findings of the trial court and the High Court that the Plaza Talkies was attached in execution of a decree in suit No. 3B of 1952 on 4-5-1955 and that this attachment was in existence when the impugned lease was executed on 30-3-1956 are erroneous. On these findings, the lease of 1956 was certainly struck by the provisions of section 64, Civil Procedure Code also. Section 64 Civil Procedure Code in fact, constitutes an application of the doctrine of lis pendens in the circumstances specified there."

4.4. Section 74 of the Code of Civil Procedure which bars any resistance or obstruction to execution of a decree without any just cause also appears to be relevant. This section reads as follows:-

"Where the court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree holder or purchaser, order the judgment-debtor or such other person to be detained in the civil prison for a term which may extend to thirty days and may further direct that the decree holder or purchaser be put into possession of the property."

Any person who acquires property pendente litein violation of the provisions of section 52 would naturally be covered by the aforesaid section 74. In other words, the transferee acquiring property from the judgment-debtor against the provisions of section 52 will have no legal authority or any just cause to resist or obstruct execution of decree.



Section 52 of the Transfer of Property Act, 1882 and its Amendment Back




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