Constitution of India – Art. 137 – Supreme Court Rules, 2013 – Ord. XLVII r.1 – Review of judgments of Supreme Court – Suit fo specific performance – Suit instituted, if barred by limitation – Agreement to sell land between the original owners and vendors – Sale deed not executed, though the full sale consideration paid – However, execution of irrevocable power of attorney in favour of the vendors – Three years later, vendors executed agreement to sell in favour of the petitioner – Issuance of two legal notices by the petitioner to the respondents calling upon them to execute the sale deed upon receipt of the balance consideration – Thereafter, petitioners filed suit for specific performance of the agreement to sell, which was dismissed – High Court partly allowed the appeal decreeing the suit in favour of the petitioner only to the extent of the consideration paid by the petitioner – In appeal thereagainst, this Court held that the suit was barred by limitation – Review petition filed seeking review of the judgment – Exercise of review jurisdiction, if warranted:
Held: Petitioner had notice that performance is refused only by the reply dated 14.04.2000 to the first legal notice of the petitioner – Limitation prescribed by Art. 54 sets in from the date when the petitioner received the reply refusing performance – Irrespective of whether the suit was instituted on 9.08.2002 (as concluded by trial court) or 30.07.2002 (as concluded by the High Court), it was within limitation – Further, doctrine of lis pendens applies where the petition for review was lying in the registry in a defective state – Review proceedings were “instituted” within the period of limitation of thirty days – Doctrine of lis pendens kicks in at the stage of “institution” and not at the stage when notice is issued by this Court – Thus, s. 52 of the Transfer of Property Act would apply to the third-party purchaser once the sale was executed after the review petition was instituted before this Court – Any transfer made during the pendency is subject to the final result of the litigation – Furthermore, even assuming that the grant of relief of specific performance continued to be discretionary to a suit instituted before the date of the amendment to s. 10 of the Specific Relief Act, this Court erred in its analysis of whether the Court ought to use its discretionary power in this matter – It cannot be concluded that the petitioner was not ready or willing to perform his part of the contract merely because the balance sale consideration was due to be paid – Petitioner with the payment of the additional sum above the earnest money, has proved his readiness and willingness to perform the contract – On application of the facts to the principles in ss. 10 and 16 of the Specific Relief Act, it is a fit case for this Court to exercise its discretion to direct specific performance – Thus, in view of the errors apparent, both on the issues of limitation and specific performance, the judgment of this Court recalled and that of the High Court restored. [Paras 30, 31, 41, 42, 49-52] Transfer of Property Act, 1882 – s. 52 – Doctrine of lis pendens – Application of – Conditions to be fulfilled:
Held: There must be a pending suit or proceeding; suit or proceeding must be pending in a competent court; suit or proceeding must not be collusive; right to immovable property must be directly and specifically in question in the suit or proceeding; property must be transferred by a party to the litigation; and the alienation must affect the rights of any other party to the dispute – Doctrine of lis pendens that s. 52 encapsulates, bars the transfer of a suit property during the pendency of litigation – Only exception to the principle is when it is transferred under the authority of the court and on terms imposed by it – Where one of the parties to the suit transfers the suit property (or a part of it) to a third-party, the latter is bound by the result of the proceedings even if he did not have notice of the suit or proceeding – Purpose of lis pendens is to ensure that the process of the court is not subverted and rendered infructuous – In the absence of the doctrine of lis pendens, a defendant could defeat the purpose of the suit by alienating the suit property – This purpose of the provision is clearly elucidated in the explanation clause to s. 52 which defines “pendency” – Amending Act 20 of 1929 substituted the word “pendency” in place of “active prosecution” – Amending Act also included the Explanation defining the expression “pendency of suit or proceeding” – “Pendency” is defined to commence from the “date of institution” until the “disposal”. [Paras 46, 47, 49] Review – Review jurisdiction – Grounds for exercising review jurisdiction – Principles on the exercise of review jurisdiction – Stated – Supreme Court Rules, 2013 – Order XLVII – Code of Civil Procedure, 1908 – Ord. XLVII r. 1. [Paras 18, 19]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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