SANKARAN Vs. ACHUTHAN
LAWS(KER)-1955-1-12
HIGH COURT OF KERALA
Decided on January 03,1955

SANKARAN Appellant
VERSUS
ACHUTHAN Respondents

JUDGEMENT

- (1.) The petitioner in this revision is the defeated petitioner in the court below for redelivery of immovable property delivered to the respondent by court pursuant to a sale certificate in his favour. The suit which led to the sale was filed in Makaram 1108 which ended in a decree in the same month the next year. The sale was held in March 1951 and delivery was given in September 1952.
(2.) The petitioner claims to be in possession pursuant to a sale in his favour given by the 11th defendant in the year 1110 (Ext. T) for a consideration of Rs.195, the bulk of which namely, Rs. 187-8-0 was amount due to the petitioner under Ext. III which is a transfer in the year 1104 of the right of the 12th defendant to receive money by way of a non possessory charge under a deed of partition of the year 1103 (Ext. II) in the tarwad to which the property belonged. At that partition the properties were allotted to the 11th defendant with the aforesaid charge in favour of the 12th. The petitioner urges that as per the aforesaid transactions culminating in the sale to him of the year 1100 which though after the decree was long before the sale and delivery to the respondent, he is entitled to be in possession of the property. This contention cannot be accepted as the suit which led to the sale in court auction was for the grant and enforcement of a charge on the property for the rent due to the plaintiff who was the possessory mortgagee thereof and who leased it back to the mortgagor. The charge asked for was granted by the decree. The charge that the petitioner claims though prior is, as already stated, non possessory. His right to that charge stands unaffected by the decree, sale and delivery. The transfer of possession by the judgment debtor, 11th defendant to the petitioner was pending the suit in which the charge on property asked for was granted. The principle of lis pendens vitiates the transfer of possession. That principle applies not only to a case where the plaintiff seeks to enforce a pre-existing charge but also to a case in which the plaint asks for the grant of a charge. The transferee pendente lite takes the transfer from a defendant to the action subject to the rights granted by and enforced under the decree. The petitioner, therefore, was not entitled to resist delivery to the respondent purchaser.
(3.) Learned counsel for the petitioner contends that under R. 289 of the Travancore Civil Courts Guide, 1120, corresponding to R. 208 of the Travancore Civil Courts Guide 1099 provides for the issue of a notice to the judgment debtor or other person in possession of property before it is delivered to a purchaser or decree holder and the provision for such notice is, as held in 1944 TLR 416, mandatory. Neither the rule nor the decision relied upon would help the petitioner because the rule applies only to a case where the party sought to be dispossessed is entitled to resist delivery and the decision cited only decides that in a case to which the rule applied, its provisions are mandatory. If a person is not entitled to resist delivery he is not entitled to notice under the rule and the mandatory character of the rule does not help him. The absence of notice to the petitioner in this case who as already found is not entitled to resist delivery is immaterial.;


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