2004 (7) TMI 677 - HC - Indian Laws

Summary

Issues Involved:
1. Executability of the decree in O.S. No. 841 of 1981.
2. Impact of the decree in O.S. No. 325 of 1986 on the executability of the decree in O.S. No. 841 of 1981.
3. Application of the doctrine of lis pendens.
4. Non-impleading of necessary parties in execution proceedings.

Issue-wise Detailed Analysis:

1. Executability of the decree in O.S. No. 841 of 1981:
The plaintiffs 2 to 6, who are the legal representatives of the deceased first plaintiff Perianna Nadar, filed a revision petition against the dismissal of R.E.P. No. 59 of 1992. The original suit, O.S. No. 841 of 1981, was for specific performance of a contract of sale dated 15.7.1978. An ex parte decree was passed on 11.2.1983 due to the defendant's non-appearance at trial. The plaintiffs sought execution of this decree, which was contested by the respondent on grounds that it was not executable due to a subsequent decree in O.S. No. 325 of 1986.

2. Impact of the decree in O.S. No. 325 of 1986 on the executability of the decree in O.S. No. 841 of 1981:
Kondappa Naicker and his wife Dhanalakshmi, who claimed to have purchased the suit property during the pendency of the original suit, filed O.S. No. 325 of 1986 for declaration and injunction. The ex parte decree in this suit declared their entitlement to the property. However, the execution petition filed by Perianna Nadar was dismissed, and subsequent appeals, including a Special Leave Petition, were also dismissed. The respondent argued that this decree rendered the original decree in O.S. No. 841 of 1981 non-executable.

3. Application of the doctrine of lis pendens:
The court emphasized the doctrine of lis pendens, which invalidates any transfer of property during the pendency of litigation. The sale to Kondappa Naicker and Dhanalakshmi on 25.4.1980, during the pendency of O.S. No. 661 of 1979 (later renumbered as O.S. No. 841 of 1981), was deemed non-est in the eye of law. The court cited several precedents, including decisions from this court and other jurisdictions, affirming that transfers made during the pendency of a suit are subject to the outcome of the litigation and do not affect the rights of the parties as decreed.

4. Non-impleading of necessary parties in execution proceedings:
The court addressed the argument regarding the non-impleading of Kondappa Naicker and Dhanalakshmi in the execution petition. It was held that they were unnecessary parties to the execution proceedings since the decree in O.S. No. 841 of 1981 was obtained against the original defendant, and any subsequent purchasers during the pendency of the suit were bound by the decree due to the doctrine of lis pendens.

Conclusion:
The court concluded that the decree in O.S. No. 841 of 1981 was executable despite the subsequent decree in O.S. No. 325 of 1986. The order of the Executing Court dismissing R.E.P. No. 59 of 1992 was set aside, and the Executing Court was directed to execute the decree expeditiously. The Civil Revision Petition was allowed with costs.