• Decree filed late for execution but within 12 years

A compromised decree passed by TC in the year 2010 in a partitioned suit of an immovable properties. There were four main terms and conditions in the said decree. Out of four terms, only one term (transferring one property in the name of one litigant being lady, who was plaintiff in suit), was completed by all parties. All properties were in the name of only one defendant no. 1, who was a real brother of the other two.

However, None of them (3 litigants), was filed the decree for execution, in Court, for remaining three terms (i.e. few properties to be transferred equally in the name of three parties, (who were litigant in partition suit), but before such transfer, Defendant No. 2 died, who was also a real brother of plaintiff and Defendant No. 1.

After the death of defendant no. 2, the defendant no. 1 took the disadvantage of his own name on right of records, surreptitiously, sold the land to a third party, ignoring the decree, passed by TC in the year 2010, which was in force till 2022 as per limitation of 12 years.

The lady has filed the decree for execution in 2019 before executing court. summon is issued to all parties, including third party. The lady has prayed for execution of remaining three terms (as stated in para 2 above herein) along with to declare the sale-deed null and void.

the purchaser-third party has taken stand that, he is a bonafide purchaser, though he was knowing about the decree of 2010. As per his statement, the decree, though is in force but as it filed too late for execution, hence has no legal force of execution, therefore he should be declared as bonafied purchaser. 

My question is " whether the decree, which has force of execution at any time in 12 years, will be barred only because it is filed too late for execution", and the said decree will act as a lis pendens for 12 years., will attract also section 52 of transfer of property act. 


All you are requested to guide me properly
Asked 6 years ago in Civil Law

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10 Answers

Hi, 

The stand taken by third party is not valid in eye of law and the execution case is bound to proceed further.

Ganesh Singh
Advocate, New Delhi
7169 Answers
16 Consultations

Third party is not bona fide  purchaser 

 

2) he knew that decree had been passed in 2010 for transfer in name of 3 parties 

 

3) Supreme Court has held that  that 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 pending litigation, are held to be bound by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which are the subject matter of litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated.

 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

If its filed within 12 years it's not hit by law of limitation. Applicability of section 52 of TO Act aplplies in following conditions. 

  1. A suit or a proceeding in which any right to immovable property is directly and specifically in question must be pending;
  2. The suit or proceeding should be pending in a Court of competent jurisdiction;
  3. The suit or the proceeding should not be a collusive one;
  4. Litigation must be one in which right to immovable property is directly and specifically in question;
  5. Any transfer of such immovable property or any dealing with such property during the pendency of the suit is prohibited except under the authority of Court, if such transfer or otherwise dealing with the property by any party to the suit or proceeding affects the right of any other party to the suit or proceeding under any order or decree which may be passed in the said suit or proceeding.

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

Hi,

There are numerous judgment of high court and supreme court supporting your cause. First of all is the time limit of filing execution case which is in your favour. Second is getting something illegal done by defendant no. 1 and third is selling of property without proper authority to third party. You may need to present on all these issues the judgments separately.

Ganesh Singh
Advocate, New Delhi
7169 Answers
16 Consultations

In Rajender Singh and Ors. v. Santa Singh and Ors.AIR 1973 SC 2537

 

 it was observed by the Supreme Court that 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 pending litigation, are held to be bound by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which are the subject matter of litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

1. The version of the purchaser has no force in the eye of law. As long as a remedy is not time bared there is nothing called ' late' or 'eary' execution.

2. So do not worry you will get delivery of possession of the land in the execution proceeding and the third party purchaser having the knowledge of decree can not claim even a single relief on the ground of equity.

3. Where the prvisison of law is clear there is no need for decision to be cited.

Devajyoti Barman
Advocate, Kolkata
23653 Answers
537 Consultations

The execution petition filed within 12 years from the date of decree of final decree is very much valid. 

The sale of property within this period is illegal as per law. 

The petitioner in the EP can proceed. 

T Kalaiselvan
Advocate, Vellore
89976 Answers
2492 Consultations

When the provisions of law is very clear in this regard you don't need any citation to assert your claim. 

However you may look for a suitable citation through internet or contact your advocate. 

T Kalaiselvan
Advocate, Vellore
89976 Answers
2492 Consultations

Dear 

All questions relating to delivery of possession shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree. Such questions, therefore, are to be determined by the court executing the decree and not by a separate suit. Section 47 itself has nothing to do with the question of limitationArticle 136 prescribes a period of limitation of 12 years for the execution of a decree from the date on which the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making any payment or delivery in respect of which execution is sought, takes place. After a decree is out into execution within the period of limitation under Article 136,

 

As per his statement of Defendant, the decree, though is in force but as it filed too late for execution, hence has 
no legal force of execution Which comes under Article 134 of the Limitation which presdcribe a period of one
year limitation period. But this will be taken into consideration if you are opposing the sale only.

As you have filed an execution petition the limitaion period of 12 Years will be considered as per ARTICLE 136.
and Article 134 will not be considered as per defendant.

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

  1. As per the information mentioned in the present query, makes it clear that the decree having been passed, but not executed due to some reasons which are not for the court to confer if limitation period as law if limitation is still in continuance.
  2. There will be no question at all by the court of law as there is not a single judgment by the Apex court or any High Court wherein lower court can put question when the same is within the period of limitation, then no matter if it is even by one day.
  3. You will have to file a separate contempt petition for declaring the sale null and void and praying for the punishment for the non compliers apart from the present execution petition.

Sanjay Baniwal
Advocate, South Delhi
5477 Answers
13 Consultations

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