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TMI Blog1975 (8) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... a Talkies) by its former owners. Jiwan Das Bhatia and his sons (hereinafter referred to as 'the Bhatias'), is void and ineffective against the plaintiff's rights under decrees obtained in Civil Suit No. 15A of 1954 dated 7-S-60 and in Civil Suit No. 3B of 1952 dated 20-4-1954 in execution of which the Theater had been attached. The plaintiff wanted the declaration also to make it clear that an auction purchaser, purchasing the theater in execution of either of the two decrees, gets rights free from any obligation towards the Defendant-Appellant under the void lease. The former owners of the thwarter, the Bhatias, had borrowed ₹ 2,50,000/- from the Plaintiff-Respondent, a Maharaja, against the security of bales of cotton. On 29-12- 1951, they executed a registered mortgage deed in respect of the Plaza Theater in favour of the plaintiff as the price of pledged goods was insufficient to satisfy the dues. The plaintiff, unable to recover the amount due, had brought Civil Suit No. 15A of 1954 in which a compromise decree was passed on 7-5-1960, in terms of an agreement between the parties that amounts clue will be realized by the sale of Plaza theater. The Central Bank of India, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that the defendant-company had never denied any of the rights of the plaintiff. Finally, he submitted that, ill any case, no declaration at all was needed by the plaintiff if the lease of 1956, executed by the former owners of the theater in favour of the defendant-appellant, was void. 'these arguments rest on the assumption that no declaratory relief can be granted outside the ambit of Section of the Specific Relief Act, 1877 which read as follows: "42. Discretion of Court as to declarations of status or right.. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Bar to such declaration.. Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief then a mere declaration of title, omits to do so. Explanation.... A trustee of property is a "person interested to deny" a title adverse to the title of some one who is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees which are merely declaratory, and does not expressly extend to decrees in which relief is administered. and declarations are embodied as introductory to that relief. For such declarations legislative sanction is not required: they rest on long established practice. But for all that the Court should be circumspect and even chary as to the declarations it makes: it is ordinarily enough that relief should be granted without the declaration". In Deokali's case (supra), the plaintiff's suit was not thrown out on a preliminary ground, but the plaintiff was given an opportunity. to amend the plaint by asking for a consequential relief for setting aside the impugned decree and paying an additional court fee. The case could have only an indirect bearing on the case now before us where no question of a payment of any additional court-fee after adding a consequential relief involved arises. The observations made ill Deokali's case must be read in the context of what arose for decision there. In Sheoparsan Singh & Ors. case (supra), what was really held by the Privy Council was that a grant of probate under the Probate and Administration Act (V of 1881), which operated as a judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate cases falling outside Section 42. We, think that the circumstances in which a declaratory decree under Section 42 should be awarded is a matter of discretion depending upon the facts of each case. No doubt a complete stranger whose interest is not affected by another's legal character or who has no interest in another's property could not get a declaration under Section 42 Specific Relief Act with reference to the legal character or the property involved. Such, however, is not the case before us. The plaintiff-respondent, in the case before us, had not only the rights of a mortgagee decree-holder with regard to the property involved, but he was also the assignee of the rights of the Bank which had got the property in question attached in execution of its decree. We find, from connected special leave petitions against orders under o. 21, Rule 95, Civil Procedure Code that the plaintiff's wife became the auction purchaser of this property during the pendency of the litigation now before us. At the time when he filed the suit the plaintiff may have been looking forward to purchasing the property. Although, the mere possibility of future rights of an intending purchaser c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 & Ors. v. Khazan Singh & Anr.(2), 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 lispendens, as explained by this Court in Jayaram Mudaliar v. Ayyaswami & Ors.(1), embodied in Section 52 of the Transfer of Property Act. 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 lite by acts of parties, is pending. Moreover, for the purposes of this argument, the defendant appellant assumes that the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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