Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | 1908: Or.XXI r.90 r/w s.47 Code of Civil Procedure |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Act(s) Referred | Transfer of Property Act, 1882 (4 of 1882) Code of Civil Procedure, 1908 (5 of 1908) |
Case(s) Referred | Referred Case 0 |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Code of Civil Procedure, 1908:Or.XXI r.90, r/w s.47 – Suit for title and declaration filed onthe basis of purchase of suit property from defendant no.1 –Defendant no. 2 who is wife of defendant no. 1 contended thatdefendant no. 1 could not have sold the suit property to plaintiff asshe had obtained charge on the suit property in a maintenance suit– Her case was that her husband in collusion with the plaintifforchestrated a nominal and fictitious sale deed and the said saledeed was executed during the pendency of maintenance suit and,thus, was hit by s.52 of TP Act – The said suit was finally held in herfavour and she obtained decree and the property was auctionedand successfully purchased by her in court auction – Defendantno. 1 filed an application under Or.XXI, r.90 and plaintiff also filedan application under s.47 r/w Or.XXI, r.90 to set aside the sale –Application of defendant no.1 was dismissed as not pressed –Application by plaintiff for setting aside the sale was also dismissedin default of appearance and sale was confirmed – Defendant no.2sold the suit property to appellant-defendant no.3 – Plaintiffsuppressing the factum of having filed application under Or.XXI,r.90 and its dismissal filed suit for declaration of title and restorationof possession – Whether the suit was hit by principle of res judicatain view of dismissal of application under Or.XXI, r.90 r/w s.47 –Held: Where an application has been filed under Or.XXI, r.90 to setaside a sale on the ground of material irregularity, and the sale isconfirmed under r.92(1) of Or.XXI, the objector is precluded byvirtue of the provisions under Or.XXI, r.92(3) from bringing a suitto set aside the sale on the same grounds – The auction purchasemade by defendant no.2 (decree-holder) had attained finality –Confirmation of sale was not questioned by the plaintiff – Thus, no relief could have been granted – The earlier orders attained finalityand, therefore, operated as a bar for the entertainment of the freshsuit – As regards question of lis pendens, on the date of purchase ofsuit property by plaintiff, the suit filed by defendant no.2 waspending – Thus, the provisions contained in s.52 would clearly applyto the case – Suit for title and declaration liable to be dismissed –Transfer of Property Act, 1882 – s.52 – lis pendens – Doctrine ofres judicata. |
Judge | Hon'ble Mr. Justice Arun Mishra |
Neutral Citation | 2018 INSC 506 |
Petitioner | Siddagangaiah (d) Thr. Lrs. |
Respondent | N.k. Giriraja Shetty (d) Thr. Lrs. |
SCR | [2018] 6 S.C.R. 457 |
Judgement Date | 2008-05-11 |
Case Number | 5007 |
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