Shri Prakash Gobindram Ahuja vs Shri Ganesh Pandharinath Dhonde And ...

District : Thane. ] .... Appellant

Versus

1. Ganesh Pandharinath Dhonde ]

Adult, Occupation : Agriculturist ]

ig ]

2. Mrs. Sharada Pandharinath Dhonde ]

Alias Mrs. Sharada Bala Patil ]

]

3. Mrs. Savitribai Pandharinath Dhonde ]

Adult, Occupation : Housewife ]

]

4. Mrs. Yamunabai Dattatraya Dhonde ]

Adult, Occupation : Housewife ]

]

5. Mrs. Surekha alias Rekha Ramesh Dhonde ]

Adult, Occupation : Housewife ]

]

6. Kum. Seema Bhagwan Dhonde ]

Adult, Occupation : Housewife ]

]

All residents of Chikoli, Taluka Ambernath, ]

District Thane. ]

]

7. Shri. Dattu alias Datta Maruti Bhoir ]

Adult, Occupation : Business, ]

Taluka Chikoli, District Thane. ]

]

8. Shri. Vasant Maruti Bhoir ]

Adult, Occupation : Business, ]

R/at Mahalaxmi Niwas, Mahad, ]

Apat Wadi, Badlapur (East), ]

Taluka Ambernath, Dist. Thane. ] .... Respondents

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Ms. Kalyani Tulankar a/w. Mr. Sandeep Pathak, i/by Mr. Sugandh D.

Deshmukh, for the Appellant.

None for the Respondents.

CORAM : S.C. DHARMADHIKARI &

DR. SHALINI PHANSALKAR-JOSHI, J.J.

RESERVED ON : 22ND JULY 2016.

PRONOUNCED ON : 4TH OCTOBER 2016.

JUDGMENT :

[Per Dr. Shalini Phansalkar-Joshi, J.]

1. As per the order passed by the Hon'ble the Acting Chief Justice, this Appeal is placed before us for deciding following questions of law, which are framed by learned Single Judge of this Court [Coram : R.C. Chavan, J.], when the Appeal was placed before him for admission :-

(I) Does Section 52 of the Transfer of Property Act provide adequate protection to the parties from transfers pendente

lite since such transferees are not required to be, or

entitled as of right to be, impleaded as parties to the suit

and cannot resist execution proceedings in view of

provisions of Order XXI Rule 100 of the Code as

amended by this Court ?

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(II) Would plaintiffs' registering notices of their suits under

Section 18 of the Indian Registration Act (though such

registration may not be compulsory) not secure for

plaintiffs more than what an injunction could secure since transferees, who purchase property, pendente lite in spite

of such registration would be deemed to have notice of

pendency of the lis and could not claim to be transferees

without notice ? And, would such registration not be

preferable to clamping an injunction on adversary ?

(III) Since a plaintiff seeking a temporary injunction is required

to show that he would suffer irreparably if temporary

injunction is not issued, would it be inappropriate to

expect such plaintiff to show that the provisions of Section 52 of the Transfer of Property Act do not afford adequate

protection before an injunction to restrain transfer

pendente lite is issued ?

(IV) Would it be appropriate, in cases of claims for temporary injunction to restrain transfers pendente lite, to consider imposition of conditions short of granting injunction, which should protect the plaintiff's interest, like, seeking an

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the Court promptly of creation of every such interest ?

(V) Whether the observation in para (13) of the judgment in

Vasant Tatoba Hargude and others v. Dikkaya Muttaya

Pujari (AIR 1980 Bombay 341) that in the event of there

being conflict, the decision of later Bench would bind only

lays down that judgment later in point of time as

explaining the earlier judgment would bind ?

2. The facts of the Appeal, which may be relevant for deciding these questions of law, can be stated as follows :

The appellant herein has filed Special Civil Suit No.104 of 2012 before the IInd Joint Civil Judge, Senior Division, Kalyan for specific performance of Agreement to Sale. Along with the suit, appellant has also filed an application for injunction at Exhibit-5, restraining Respondent No.7 from creating third party interests in the suit property pending hearing of the suit. It is the case of the Appellant that Respondent Nos.1 to 6 owned

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Therefore, he sought temporary injunction by filing application at Exhibit-5 along with the suit.

3. The said application came to be rejected by the Trial Court vide its impugned order holding that the appellant had not made out a prima facie case and balance of convenience was not in his favour. Moreover, the appellant has also not shown that any irreparable loss would be caused to him, if injunction was not granted. Aggrieved by this order, the appellant has preferred this Appeal and sought an order of interim injunction seeking the same relief of restraining respondent No.7 from creating third party interests in the suit property during the pendency of the Appeal.

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4. When the Appeal came up for hearing before the learned Single Judge, he referred to his earlier Judgment in Kachhi Properties Vs.

Ganpatrao Shankarrao Kadam & Ors.1 and remarked that since the appellant had not made out a case that protection under Section 52 of the Transfer of Property Act, 1882, (for short, "TP Act"), was not adequate, the appeal was liable to be dismissed. Thereupon, learned counsel for the appellant pointed out that in the case of Pralhad Jaganath Jawale & Ors.

Vs. Sitabai Chander Nikam & Ors.2, another learned Single Judge of this Court [Coram : A.S. Oka, J.], after carefully considering the Judgment in Kachhi Properties (supra), had concluded that in view of binding precedents of the Apex Court, the observation in Kachhi Properties, that provisions of Order 39 Rule 1 of Code of Civil Procedure, 1908, (for short, "CPC"), could be invoked only if protection provided by Section 52 of the TP Act is shown to be inadequate, could not bind the Court and the finding of the Court in the case of Kachhi Properties (supra) that Section 52 of the TP Act provides adequate protection, did not create a binding precedent.

5. The learned Single Judge, before whom this Appeal was placed, in such situation, felt that this necessitated a fresh look or rather a second fresh look, at the conclusions drawn in Kachhi Properties, as also the observations thereon made by another learned Single Judge in Pralhad 1 2010 (5) Bom.C.R. 43 2 2011 (6) Bom.C.R. 619

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Jaganath Jawale (supra), since in Kachhi Properties, he has re-examined the same issue, which he had decided earlier also in the case of Sharad Jamnadharji Mor Vs. Arjun Yeshwant Dhanwatey & Anr.3.

6. The learned Single Judge then heard learned counsel for the appellant, who unfolded all aspects of the matter and threw light on all pros and cons, so as to decide the controversy. After referring to number of decisions of the Hon'ble Supreme Court of India and this Court, the learned Single Judge came to the conclusion that, the view he had taken in his earlier Judgment in Kachhi Properties, being the correct view, the Appeal could have been dismissed as untenable and as resulting in heaping upon the judicial system an unwarranted burden. However, learned Single Judge felt that, "since conflicting Judgments of the Courts of record tend to create confusion in the Trial Courts and result in uncertainty in law, and, since on this question, there are at-least three Hon'ble Judges, who seem to have accepted that Section 52 of the TP Act affords adequate protection, which view has not found favour with the Hon'ble Judge deciding the case of Pralhad, it would be appropriate to have the matter referred to a Larger Bench, rather than committing judicial indiscipline of taking a different view."

3 2009 (4) Bom.C.R. 523

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7. The learned Single Judge, therefore, thought it necessary to refer the above referred questions for decision to a Division Bench. That is how this matter came to be placed before us, in pursuance of the order of the Acting Chief Justice, for decision on these five questions.

8. In this Appeal, with the able assistance of learned Senior Counsel for the Appellant, we have gone through the Judgment of learned Single Judge in Kachhi Properties (supra); Judgment of another learned Single Judge in Pralhad Jaganath Jawale (supra) and then the copious observations made by learned Single Judge in this Appeal, while referring these questions of law for decision before the Division Bench. The learned Senior Counsel for the Appellant has also taken us through the plethora of Judgments of the Hon'ble Supreme Court and this Court, which touch substantially or peripherally the controversy involved herein. Learned senior counsel for the appellant has further referred to the relevant provisions of Transfer of Property Act, 1882, Code of Civil Procedure, 1908, Civil Manual and, most importantly, the 157 th Report of Law Commission of India, on Section 52 of the TP Act and its amendment.

9. It is in this backdrop that we have been called upon to decide the questions of law, which essentially pertain to the protection given under Section 52 of the TP Act against transfer pendente lite vis-a-vis protection

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10. To understand the exact nature of controversy and the circumstances in which these conflicting decisions in the cases of Kachhi Properties and Pralhad Jawale (supra) came to be delivered, it would be necessary to make brief reference to the facts of these two decisions and the legal position, as enunciated therein.

Legal position set out in Kachhi Properties (supra)

11. The first case which came to be decided in point of time is of Kachhi Properties. In that case a common question was raised in a bunch of Appeals about the necessity of granting a temporary injunction to restrain a Defendant from creating third party interests / alienating the property during the pendency of the Suit, in the face of provisions of Section 52 of the TP Act. The facts giving rise to those Appeals were also, more or less, the same. It was common ground that the appellants in the said Appeals were the plaintiffs and they had filed suits of various natures, like for partition and separate possession of their shares in the joint family properties, for specific performance of an Agreement for Sale or

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Development Agreement, suits based on possession of property seeking to avoid transfer, either executed or to be executed, or suits by plaintiffs not in possession of the properties transferred to them, where transferor repudiated the transfer and of the like nature. In these nature of suits, a common relief was sought seeking temporary injunction with a limited nature of restraining the Defendants from alienating the property or creating third party interests during pendency of the suit. In some of the suits, such relief was granted by the Trial Court and in some suits, it was not granted.

12. When these Appeals were placed before the learned Single Judge, the learned Single Judge posed a question, as to whether in such cases even if the plaintiff may have established a prima facie case, whether in the face of provisions of Section 52 of the TP Act, the plaintiff could complain that he would suffer irreparable loss, if an injunction to restrain creation of third party interests is not issued, and could it be held that the balance of convenience would lie in favour of granting such an injunction.

13. While deciding this question, the learned Single Judge referred to his earlier Judgment in the case of Sharad Jamnadharji Mor (Supra), wherein he had held that, refusal of temporary injunction by the Trial Court need not be interfered with in such cases in view of the protection

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14. Learned Single Judge then referred to the provisions of Section 52 of the TP Act, as amended by Bombay Act XIV of 1939, in reference to an amendment in Section 18 of the Registration Act introducing sub-section (ee). Learned Single Judge then also referred to the various decisions as follows :-

1. Sharad Jamnadharji Mor v. Arjun Yeshwant Dhanwatey,

2009 (4) Bom.C.R. 523 (N.B.)

2. Nathaji Anandrav Patil v. Nana Sarjerao Patil , 1907(9)

Bom.L.R. 1173

3. Bellamy v. Sabine, 1857 (1) De G.&J. 585.

4. The Bishop of Winchester v. Paine, 1805 (11) Ves. 197.

5. Metcalfe v. Pulvertoft, 1813 (2) Ves.& B. 204.

6. Landon v. Morris, 1832(5) Sim. 263.

7. Pramatha Nath Roy v. Jagannath Kishore Lal Singh Deo , 16

I.C. 359 : 1913(17) Cal.L.J. 427.

8. Smt. Muktakesi Dawn v. Haripada Mazumdar , AIR 1988 Cal

25.

9. Nagubai Ammal v. B. Shama Rao, 1956 DGLS (soft) 38 :

AIR 1956 SC 593.

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10. Jayaram Mudaliar v. Ayyaswami, 1972 DGLS (soft) 220 :

1972 (2) SCC 200.

11. Rajendra Singh Vs. Santa Singh, 1973 DGLS (soft) 240 :

1973(2) S.C.C. 705.

12. Hadley v. London Bank of Scotland, 1865 (3) De GJ & S

63.

13. Kishorsinh Ratansinh Jadeja v. Maruti Corporation, 2009

DGLS (soft) 449 : (2009) 11 SCC 229.

14. Sanjay Verma v. Manik Roy, 2006 DGLS (soft) 971 :

2006(13) SCC 608 : AIR 2007 SC 1332.

15. Bibi Zubaida Khatoon v. Nabi Hassan Saheb , 2003 DGLS

(soft) 625 : 2004 (1) SCC 191.

16. Sarvinder Singh v. Dalip Singh, 1997 (Supp) Bom.C.R. 53

(S.C.) : 1996 DGLS 1133 : 1996 (5) SCC 539.

17. Dhurandhar Prasad Singh v. Jai Prakash University 2001

DGLS (soft) 885 : 2001 (6) SCC 534 : AIR 2001 SCW

2674.

18. Moti Lal v. Karrabuldin, ILR 1898 (25) Cal 179.

19. Prannath Roy Chowdry v. Rookea Begum, 1857-60 (7)

MIA 323.

20. Usha Sinha v. Dina Ram, 2008 DGLS (soft) 365 : 2008(7)

SCC 144.

21. Vijayalakshmi Leather Industries Vs. K. Narayanan,

Lalitha, AIR 2003 Mad 203.

22. Silverline Forum (P) Ltd. v. Rajiv Trust, 1998 DGLS (soft)

378 : 1998 (3) SCC 723.

23. Rukhana Enterprises v. Ashoka Marketing Ltd., 2010 (1)

Bom.C.R. 765 (O.S.).

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24. Anand Nivas Private Ltd. v. Anandji Kalyanji 's Pedhi, 1963

DGLS (soft) 188 : AIR 1965 SC 414.

25. Veyindramuthu Pillai v. Maya Nandan [(1920) ILR 43 Mad

696.

26. Gangubai Babiya Chaudhary v. Sitaram Bhalchandra

Sukhtankar, 1983 DGLS (soft) 168 : AIR 1983 SC 742.

27. Abdul Salam v. Sheikh Mehboob, 2006(3) Bom.C.R. 700

(N.B.) : 2006 (2) Mh.L.J. 277.

28. Keshrimal Jivji Shah v. Bank of Maharashtra , 2004(4)

Bom.C.R. 842 (O.S.) : 2004 (3) Mh.L.J. 893.

29. Dinkar Dada Mahadik v. Shrirang Dada Mahadik , 1992 B.C.I.

74 : 1992 Mh.L.J. 248.

15. Out of these authorities relied upon by learned counsel for the parties, the learned Single Judge, after referring to the facts of those authorities, found that so far as the decisions in Pramatha Nath Roy Vs.

Jagannath Kishore Lal Singh Deo4, Smt. Muktakesi Dawn and Ors. Vs.

Haripada Mazumdar and Anr.5, Nagubai Ammal and Ors. Vs. B. Shama Rao & Ors.6, Jayaram Mudaliar Vs. Ayyaswami and Ors. 7 and Rajendra Singh and Ors. Vs. Santa Singh and Ors. 8 are concerned, they are not directly relevant to the controversy involved, as the issues raised therein were not the one of grant of temporary injunction, but they pertain to only the doctrine of lis pendens, as contained in Section 52 of the TP Act.

4 1913 (17) Cal.L.J. 427 5 AIR 1988 Calcutta 25

6 AIR 1956 SC 593

7 1972(2) SCC 200

8 1973(2) SCC 705

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16. Learned Single Judge found that the only Judgment which directly deals with the question of grant of temporary injunction in cases where plaintiff could have protection of Section 52 of the TP Act was, one of a Division Bench of the Calcutta High Court in Smt. Muktakesi Dawn (supra). Learned Single Judge reproduced para No.4 of the said Judgment, which deals with the said question.

"4. Mr. Roy Chowdhury has secondly urged that an injunction

restraining the defendant from transferring the suit

property was absolutely unnecessary as no post-suit

transfer by the defendant can adversely affect the result of the suit because of the provisions of section 52 of the T.P.

Act whereunder all such transfers cannot but abide by the result of the suit. It is true that the doctrine of lis pendens as enunciated in section 52 of the T.P. Act takes care of all

pendente lite transfers; but it may not always be good

enough to take fullest care of the plaintiff's interest vis-a- vis such a transfer. The suit giving rise to the impugned order is one for specific performance of sale in respect of the suit property and if the defendant is not restrained from selling the property to a third party and accordingly a third party purchases the same bona fide for value without any notice of the pending litigation and spends a huge sum for the improvement thereof or for construction thereon, the equity in his favour may intervene to persuade the Court to decline, in the exercise of its discretion, the equitable relief

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the suit property and if the doctrine of lis pendens as

enacted in section 52 of the T.P. Act was regarded to have provided all the panacea against pendente lite transfers,

the Legislature would not have provided in Rule 1 for

interim injunction restraining the transfer of suit property.

Rule 1 of Order 39, in our view, clearly demonstrates that, notwithstanding the Rule of lis pendens in section 52 of

the T.P. Act, there can be occasion for the grant of

injunction restraining pendente lite transfers in a fit and

proper case."

17. According to learned Single Judge, in this decision, the only reason for holding that an injunction could still be issued, despite protection given under Section 52 of TP Act, was found to be that, otherwise the Legislature would not have provided under Order XXXIX, Rule 1 of CPC for grant of an injunction restraining alienation or sale. While dealing with the observations made in the said Judgment that, "Section 52 of the TP Act was not a panacea and that in spite of rule of lis pendens, there could be occasions for grant of temporary injunction", learned Single Judge, in Para No.15 of its Judgment, observed as follows :-

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"15. There can be no doubt that there could always be cases

where rule of lis pendens may be inadequate to prevent

the mischief and a temporary injunction to prevent such

mischief would be warranted. This would imply that a

person claiming injunction in such a situation would

have to show that protection under section 52 of the TP

Act is not adequate. Merely because there is a power,

its exercise could not be sought as a matter of course;

or simply because its exercise is unlikely to hurt the

defendant; for, while granting injunction the Court must

see that plaintiff makes out a case of irreparable loss

and it is not for the defendant to prove that he would

suffer if an injunction is issued. After plaintiff proves

irreparable loss, comes the question of balance of

convenience or rather balance of inconvenience, when

the Court would enquire as to who would suffer greater

inconvenience and decide whether injunction ought to

be granted."

18. Then the learned Single Judge dealt with the Judgments in the cases of Kishorsinh Ratansinh Jadeja Vs. Maruti Corporation and Ors. 9 and that of Sanjay Verma Vs. Manik Roy and Ors. 10 and found that while dealing with the issue involved therein, as to whether the alienees pendent lite would be necessary or proper parties to the suit, the Supreme Court has held in the later Judgment of Sanjay Verma that if the alienation is without the permission or leave of the Court, the transferees have no

9 2009(11) SCC 229

10 2006(13) SCC 608

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19. The learned Single Judge then referred to the decisions of Supreme Court in Silverline Forum (P) Ltd. (supra), Sarvinder Singh (supra), and Anand Niwas Private Ltd. (supra) and held that, in view of Rule 102 of Order XXI CPC, as transferee pendent lite cannot resist the execution, the plaintiff need not worry at all about transfers pendent lite and so occasions for invoking powers under Order XXXIX Rule 1 and 2 would arise only in rare cases where plaintiff can demonstrate that Rule of Lis Pendens is inadequate to protect his interests.

20. Learned Single Judge then also referred to the facts of the case in Dhurandhar Prasad Singh Vs. Jai Prakash University and Ors. 11, which dealt with the principles of lis pendens specified in Section 52 of the TP Act as follows :-

11 2001(6) SCC 534

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"12. The principles specified in section 52 of the TP Act are

in accordance with equity, good conscience or justice

because they rest upon an equitable and just foundation

that it will be impossible to bring an action or suit to a

successful termination if alienations are permitted to

prevail. A transferee pendente lite is bound by the

decree just as much as he was a party to the suit. The

principle of lis pendens embodied in section 52 of the

TP Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying

section 52 is that a litigating party is exempted from

taking notice of a title acquired during the pendency of

the litigation. The mere pendency of a suit does not

prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no

manner affect the rights of the other party under any

decree which may be passed in the suit unless the

property was alienated with the permission of the

Court."

21. Thereafter, considering the other Judgments relied upon by learned counsel for the parties, which are referred supra, learned Single Judge dealt with the submission raised by learned counsel for the appellant therein. It was to the effect that, for over 100 years, Section 52 of the TP Act, as also Order XXXIX, Rule 1 of the CPC co-exist, and if for a century, it has not been felt necessary to refuse injunctions to alienate on the

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22. Learned Single Judge has, then, in para No.30 of its Judgment, proceeded to sum up the legal position as follows :-

"(a) Section 52 of the TP Act provides adequate protection to

the parties from transfers pendente lite and such

transferees are neither required to be impleaded nor can

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claim impleadment. They cannot even resist execution

proceedings.

(b) In Mumbai (as also elsewhere as and when amended provisions are made applicable) plaintiffs could (or rather

ought to) have notices of their suits registered under

Section 18 of the Indian Registration Act, in view of the amended provision of the TP Act and the Registration Act.

They cannot seek to restrain adversary by an injunction

by refusing to go in for registration of the lis.

(c)

Rule 1 of Order XXXIX of the Civil Procedure Code

enabling Court to grant temporary injunctions to restrain

transfers pendente lite is only an enabling provision,

recognizing the power in the Court to issue such

injunction and does not imply that because there is power, it must be exercised. The provision could be invoked only if protection provided by Section 52 of the TP Act is shown

to be inadequate.

(d) In the face of protection provided by Section 52 of the TP Act, Courts should be cautious in examining the claims by plaintiffs of irreparable loss if injunction to restrain

alienations is refused.

(e) In suits for specific performance/right to develop against

the recorded/rightful owners, Courts may consider if an

injunction would cause greater inconvenience to a rightful owner by being deprived the right to deal with his property for the sake of a claim which is yet to mature into right and

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and is not certain.

(f) Courts may consider necessity of imposing suitable conditions to protect plaintiffs' interests short of granting injunction - like seeking undertaking that no equities would be claimed, on account of sale/development of properties; effecting sales only after putting transferees to notice that their rights would be subject to suit etc.. Interests of

prospective purchasers would also be protected if

plaintiffs in such cases register the lis, though it may be

optional."

23. The learned Single Judge was, thus, pleased to confirm the trial Court's order refusing the relief of temporary injunction against pendente lite alienation.

Legal position set out in Pralhad Jawale (supra)

24. In the case of Pralhad Jawale, another learned Single Judge of this Court had an occasion to deal with the same controversy, which was raised in the above said decision of Kachhi Properties. In this case, there were two appeals against the orders of the Trial Judge passed in two different suits rejecting the applications of the appellants / plaintiffs for temporary injunction, for restraining the respondent / defendant from

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25. Considering that there are large number of matters in which this issue is involved, learned Single Judge heard the submissions advanced by learned counsel for the parties, especially, having regard to the fact that the Special Leave Petition preferred against the Judgment in the case of Kachhi Properties has been summarily dismissed on 1st October 2010 by the Hon'ble Supreme Court by a non-speaking order. In view thereof, the learned Single Judge proceeded to interpret the legal position, as summarized in Para No.30 in the Judgment of Kachhi Properties.

26. While dealing therewith, learned Single Judge referred to Section

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52 of the TP Act and also to the amendment made therein by Section 2 of the Bombay Amendment Act XIV of 1939 and found that there is no notification issued making applicable the substituted Section 52 to other parts of the State of Maharashtra, except the city of Mumbai. Hence, learned Single Judge held that, the substituted Section 52 can be applicable only to the suits filed in relation to the immovable properties situate in the city of Mumbai, which consists of two Revenue Districts. In the circumstances, ratio, if any, laid down by Clause (b) of para No.30 of the decision in Kachhi Properties will not have any application to the suits relating to the properties situated outside the city of Mumbai, in the absence of any notification issued under the Bombay Amendment Act XIV of 1939.

27. It was further held by learned Single Judge that, the Legislature has, while amending Section 52 of the TP Act, by the same Bombay Act XIV of 1939, amended Section 18 of the Registration Act, by adding clause (ee) providing that registration of notices of pending suits or proceedings, as referred to in Section 52, is optional. In other words, the Legislature did not make registration of the notice of lis pendens compulsory. Hence, in respect of the property situate in city of Mumbai also, even if notice of lis pendens is not registered, no other consequence

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28.

Thereafter, referring to the legal effect of Section 52 of the Act, as illustrated in the decision of Sanjay Verma, which was considered in the case of Kachhi Properties also, the learned Single Judge held, in para No.14, of his Judgment, that Section 52 of the TP Act does not put any restraint on a party to the suit from alienating the suit property, but only provides that the alienation will in no manner affect the rights of any party under any decree, which may be passed in the suit. Thus, such pendent lite transfer, even if effected without permission of the Court, is neither illegal nor void.

29. The reference was then made by learned Single Judge to the decision of the Supreme Court in the case of T.G. Ashok Kumar Vs.

Govindammal and Anr.12, wherein the Apex Court has noted certain 12 2011(1) All.M.R. 462

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30. The learned Single Judge then made reference to another decision of the Division Bench of this Court in the case of Keshrimal Jivji Shah & Anr. Vs. Bank of Maharashtra & Ors.13, in which, in paragraph No.26, the Division Bench was pleased to lay down the law that transfer of immovable property made in violation of an order of injunction issued by the Court of law confers no right, title or interest in the transferee, as it is no transfer in the eyes of law. The learned Single Judge, therefore, held that the effect of the order of prohibitory injunction restraining alienation during the pendency of the suit can be distinguished from the effect of Section 52 of the TP Act, which does not attach any illegality to a transaction, which had taken place pendent lite. The learned Single Judge was, therefore, pleased to hold that the order of prohibitory injunction grants protection, which is not available under Section 52 of the TP Act, in the event of a transfer pending the suit. Moreover, the party who breaches 13 2004 (4) Bom..C.R. 842

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31. Then, while turning to the position of law, as laid down in clause (a) of paragraph No.30 of the Judgment of Kachhi Properties (supra), that the transferees pendent lite are neither required to be impleaded nor can claim impleadment, the learned Single Judge was pleased to observe that, "the attention of the learned Single Judge in the case of Kachhi Properties was not invited to the decision of the Apex Court in the case of Amit Kumar Shaw & Anr. Vs. Farida Khatoon & Anr.14, wherein the Apex Court had an occasion to consider the effect of Section 52 of the TP Act in the context of provisions of Rule 10 of Order I, Rule 10 of Order XXII and Section 146 of the Code and it was held that an alienee pendent lite would ordinarily be joined as party to enable him to protect his interest, as he is bound by the decree passed in the suit. It was further held that, under Rule 10 of Order XXII, the alienee is entitled to be impleaded in the suit or other proceedings, where his predecessor-in-interest has been made a party to the litigation." The learned Single Judge hence held that, "in view of what is held by the Apex Court in the decision of Amit Kumar

14 AIR 2005 SC 2209

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Shaw (supra), the last part of the observation in clause (a) of paragraph No.30 of Kachhi Properties Judgment, that such transferee pendent lite cannot claim impleadment, cannot be read as a binding precedent."

32. The learned Single Judge then proceeded to decide whether Section 52 of the TP Act provides adequate protection to the parties from transfer pendent lite and was pleased to hold that the first part of clause (a) of paragraph No.30 in Kachhi Properties decision, does not lay down an absolute proposition of law that in every case, a plaintiff will be adequately protected by Section 52 of the TP Act. The power to grant relief of temporary injunction under Rules 1 and 2 of Order XXXIX of the said Code is always discretionary. Therefore, in a given case, considering the facts of the case, the Court can always come to the conclusion that the plaintiff may get adequate protection by virtue of Section 52 of the TP Act.

33. While dealing with the last part of clause (c) of paragraph No.30 in the decision of Kachhi Properties, that Rule 1 of Order XXXIX of the Code can be invoked only if protection provided by Section 52 of TP Act is shown to be inadequate, the learned Single Judge found that the attention of the Court in Kachhi Properties was not invited to the decision of the

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Apex Court in the case of Maharwal Khewaji Trust (Regd.), Faridkot Vs.

Baldev Dass15, wherein the Apex Court was pleased to find substance in the submissions of learned counsel therein that, unless and until a case of an irreparable loss is made out by the parties to the suit, the Court should not permit the nature of property being changed, which also includes alienation or transfer of the property, which may lead to loss or damage being caused to the party, who may ultimately succeed and may further lead to multiplicity of proceedings and hence the order of the High Court and the Appellate Court, permitting the Respondent to change the nature of property by putting up construction as also by permitting the alienation of property on whatever may be the condition on which the same was done, was set aside and the order of the Trial Court, restraining respondent from alienating the suit property and putting up any construction thereon, was restored.

34. Learned Single Judge then noted that in the subsequent decision in the case of N. Srinivasa Vs. Kuttukaran Machine Tools Limited 16, the Apex Court had quoted with approval what is held by the said Court in paragraph No.10 in its earlier decision in the case of Maharwal Khewaji Trust (supra) and upheld the order of the Trial Court directing the parties

15 AIR 2005 SC 104

16 (2009) 5 SCC 182

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35. Thus, looking to the law, as laid down by the Apex Court from time to time in various authorities, the learned Single Judge was pleased to summarize as follows :-

"24. ..................... Looking to the law laid down by the Apex

Court, it is apparent that the Apex Court has not

accepted the proposition that the principles incorporated

in section 52 of the said Act of 1882 offer adequate

protection to the parties to a substantive civil suit or other

proceedings. What is held by the Apex Court is that

normally during the pendency of a substantive suit where rights to immovable properties are in dispute, status quo

cannot be allowed to be altered which includes creation

of third party interests. In fact, the Apex Court in the

case of Maharwal Khewaji Trust (supra) has observed

that a defendant is required to make out a case that

irreparable loss or damage will be caused to him during

the pendency of the suit, if he is not allowed to alter the status quo. It is a well settled requirement of law that

while exercising the powers under Rules 1 and 2 of

Order XXXIX of the said Code, the Court has to consider

the issues of prima facie case, irreparable loss and

balance of convenience. In the circumstances, in view of

the aforesaid binding precedents of the Apex Court, the

observation in Clause (c) of paragraph No. 30 that the

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provision of Rule 1 of Order XXXIX could be invoked

only if protection provided by section 52 is shown to be

inadequate cannot bind this Court. Therefore, even the

observation in first part of Clause (a) that section 52

provides adequate protection to the parties from

transfers pendent lite cannot be read as a binding

precedent. In any event, in view of the law laid down by

the Apex Court, it cannot be said that provisions of

section 52 of the said Act of 1882 in any manner put

fetters on the powers of Civil Court conferred by Rules 1 and 2 of Order XXXIX of the said Code. As stated earlier, in a given case, while exercising discretionary

powers, the Court can always come to the conclusion in

peculiar facts of the given case, that in view of provisions of section 52 of the said Act of 1882, equitable relief of

temporary injunction need not be granted.

25. Where there is an apprehension shown that the

defendant may transfer or alienate the suit property,

where all three ingredients are satisfied, the applicability of section 52 of the said Act of 1882 will not take away

power of the Court to grant temporary injunction. As

noted earlier, a transaction effected in breach of section

52 is not rendered illegal or void, but a transaction

entered into in breach of order of temporary injunction is held as illegal by the Division Bench of this Court. Apart from this, the breach of injunction can visit the offending

party with very serious consequences under Rule 2 A of

Order XXXIX and Rule 11 of Order XXXIX of the said

Code.

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26. Where there is an apprehension established that the

defendant may create third party rights and all three

ingredients are satisfied, if temporary injunction is not

granted, it may result into multiplicity of proceedings

inasmuch as the alienee pendente lite may apply for

impleadment, which will result in delay in proceedings of

the suit.

27. It must be observed that Clauses (d) to (f) of paragraph

No.30 of the said decision lay down mere guidelines. It

is obvious that the guidelines cannot affect the powers of the Court, which are conferred by Rules 1 and 2 of Order

XXXIX of the said Code."

36. The learned Single Judge then laid down the conclusions drawn from the aforesaid discussion as follows :-

"28 (i) as far as right of impleadment of transferre pendente lite is concerned, what will bind this Court is what is held by the

Apex Court in the case of Amit Kumar Shaw & anr.

(supra);

(ii) in view of the binding precedents of the Apex Court, the

observation in Clause (c) of paragraph No.30 that the

provision of Rule 1 of Order XXXIX could be invoked only

if protection provided by section 52 is shown to be

inadequate cannot bind this Court. Even the observation

in first part of Clause (a) of paragraph No.30 that section

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52 provides adequate protection to the parties from

transfers pendent lite cannot be read as a binding

precedent. In any event, in view of the law laid down by the Apex Court, it cannot be said that provisions of section 52 of the said Act of 1882 in any manner put fetters on the powers of Civil Court conferred by Rules 1 and 2 of Order

XXXIX of the said Code. As stated earlier, in a given

case, while exercising discretionary powers, the Court can

always come to the conclusion in peculiar facts of the

given case, that in view of provisions of section 52 of the said Act of 1882, equitable relief of temporary injunction

need not be granted."

Legal position discussed in present appeal

by learned Single Judge while making Reference

37. It may be recalled that in this Appeal, when the matter was argued before the learned Single Judge [Coram : R.C. Chavan, J.] and learned Single Judge remarked that in view of his Judgment in Kachhi Properties (supra), the appellant/plaintiff had not made out a case that protection under Section 52 of the TP Act was not adequate and the Appeal was liable to be dismissed, learned counsel for the appellant brought to his notice the Judgment in Pralhad Jawale (supra). Thereupon, the learned Single Judge took "a fresh look, or, rather, a second fresh look", as stated by him, to his decision in Kachhi Properties and the earlier decision in Sharad Jamnadharji Mor (supra) and, in his elaborate and detailed order,

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38. Learned Single Judge then considered the provisions of Rule 98, Rule 100 and Rule 102 of Order XXI of CPC in the light of the effect of alienation pendent lite and found that plaintiff can derive no additional advantage even if he has secured temporary injunction than the protection given by Rule 98 of Order XXI of the Code. Learned Single Judge then further held that one who is bound by the injunction is transferor and not the transferee, who may not at all be a party to the suit. The learned Single Judge then also relied upon the chart submitted by learned counsel for the appellant analyzing the advantages and disadvantages of "lis

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It may only give an advantage to the legal profession in making the clients go in for this illusory remedy. It is for those in the profession on either side of the bar to examine and decide whether ethically they would like to be parties to an expedition of making the clients seek an illusory protection at substantial cost and expense in the trial as well as appellate Courts".

39. The learned Single Judge felt that, "this question assumes importance in the light of the fact, which, in fact, should not require any expert opinion that the Courts are over-burdened with work and, therefore, cannot pay adequate attention to the genuine problems, which litigants place before the Courts." After quoting extensively from the research paper of Dr. Arun Mohan, a senior advocate from the Supreme Court, learned Single Judge posed a question as to why Courts cannot

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40.

The learned Single Judge then also referred to 157th Report of the Law Commission, wherein the Law Commission had considered various provisions of Order XXI of the CPC, which recognize the principle of lis pendens. Thus, after trying to, carefully and objectively, re-examine the premises on which the Judgment in Kachhi Properties rested and not finding any reason to alter the view taken therein, the learned Single Judge was pleased to observe, in paragraph No.54, as follows :-

"54. ........................................ In fact, at the cost of

repetition, it has to be pointed out that the Hon'ble

Judge deciding Pralhad's case also agreed that Section

52 of the TP Act could provide protection to the plaintiff.

The observation of the Hon'ble Judge that the transfer

pendente lite is not held to be illegal or void is correct,

but since such transfers are ineffective against the

parties to the suit, that is all what the party needs. As

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far as observations of the Hon'ble Judge about the

judgment in Kachhi Properties having been given in

ignorance of the judgment of the Supreme Court in Amit

Kumar Shaw, it has humbly to be pointed out that Amit

Kumar Shaw does not hold that transferees pendente

lite have a right to be impleaded. It only lays down that

there could be circumstances where they ought to be

treated as proper parties. The observations based on

Maharwal Khewaji and N. Srinivasa have already been

elaborately discussed and they come in the context of

facts in those cases and cannot be read to mean that

the burden of proving irreparable loss need not be

discharged by the plaintiff or that initial burden to prove

that an injunction would not cause irreparable loss

would be on the defendant, who may not even be

before the Court when an ex-parte ad interim injunction

is granted. And, lest we forget, this would amount to

casting a negative burden."

41. Lastly, in paragraph No.55 of its Judgment, the learned Single Judge came to the conclusion that, "ordinarily, with these observations, the Appeal could have been dismissed as untenable and as resulting in heaping upon the judicial system an unwarranted burden. However, since conflicting judgments of the Courts of record tend to create confusion in the trial Courts and result in uncertainty in law, and, since on this question, there are at least three Hon'ble Judges, who seem to have accepted that Section 52 of the TP Act affords adequate protection, which

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42. The learned Single Judge also felt that this is necessary since a Division Bench of this Court in Vasant Tatoba Hargude & Ors. Vs. Dikkaya Muttaya Pujari17, holds that Judgment later in point of time would be binding in case there is a conflict in the Judgments of Courts of equal strength. According to learned Judge, "this leads to a piquant situation, as after the Judgment in Pralhad, another learned Judge of this Court, deciding Rafique Barkatulla Khan Vs. Shahenshah18, which is later in point of time, has followed the decision in Kachhi Properties".

43. In the light of all these facts, circumstances and legal position, the learned Single Judge formulated the questions, reproduced in paragraph No.1 above, for decision to a Division Bench and that is how the matter came to be placed before us.

Our Discussion on Legal Position

44. Thus, after carefully considering the legal position, as spelt out in 17 AIR 1980 Bombay 341 18 2011 (3) Mah. L.R. 732

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Discussion on Question Nos.(I) to (IV)

45. As these questions are interlinked and deal with the efficacy of Doctrine of Lis Pendens vis-a-vis the temporary injunction, they are discussed together. As far as question No.5 is concerned, it is discussed separately as in order to record the answer to question No.(V) referred above, this Court has also to consider now the binding precedent of the case law, in the event there is conflict between the decisions of the two co-ordinate Benches.

46. In order to properly and effectually adjudicate this conflict of legal opinion for the purpose of answering question Nos.(I) to (IV), in our view, it would be necessary to consider the relevant provisions of Section 52 of the TP Act; Section 18 (ee) of Registration Act, 1908, along with Rules 1, 2, 2A and 11 of Order XXXIX and Rule 98 and 100 of Order XXI of Code of Civil Procedure, 1908, ("CPC" for short), coupled with legal position laid down by the Apex Court and this Court in various of its decisions.

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47. Now coming first to the Doctrine of Lis Pendens, in order to understand the exact scope, effect and legislative history of the said Doctrine, as contained in Section 52 of TP Act, it will be interesting and enlightening to refer to the 157th Law Commission Report, submitted in the year 1998 and relied upon by learned senior counsel for the appellant. As held by Law Commission in its 157th Report, the 'Doctrine of Lis Pendens' is of ancient lineage. Originating, in the Civil Law, in the early ages, it has been operative on the basis of the common law rule by virtue of which the Judgment in a real action was regarded as over-reaching any alienation made by the defendant during its pendency. In the course of time, the doctrine was adopted by equity, being embodied in one of the Lord Bacon's Ordinances "for the better and more regular administration of justice in the Court of Chancery".

48. The oldest leading case on the Doctrine of Lis Pendens in India is Faiyaz Husain Khan Vs. Munsiff Prag Narain19, in which the Privy Council has referred to the leading case of English Court, namely, Bellamy Vs.

Sabine, wherein Turner, L.J. has explained the principle on which the Doctrine of Lis Pendens rests. It was observed by the Privy Council that, "the Doctrine of Lis Pendens, with which section 52 of the Act of 1882 is concerned, is not as Turner L.J. observed in Bellamy v. Sabine "founded

19 29 ALL 339

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49. In the cases of Jayaram Mudaliar and Rajendar Singh (supra), the Hon'ble Supreme Court has quoted the definition of "Lis Pendens", as given in the "Corpus Juris Secundum", as the expression of the principle of the maxim "ut lite pendente nihil innovetur" (pending litigation nothing new should be introduced). On that basis, the Hon'ble Supreme Court defined "Lis Pendens" as follows :-

"Lis Pendens literally means a pending suit, and the

'Doctrine of Lis Pendens' has been defined as the

jurisdiction, power, or, control, which a court acquires over property involved in a suit pending the continuance of the

action, and until final judgment therein."

50. As observed by the Hon'ble Supreme Court in Jayaram's case,

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"exposition of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject matter of litigation, so that parties litigating before it may not remove any part of the subject-matter outside the power of the Court to deal with it and thus make the proceedings infructuous."

51. The object of Section 52 of the TP Act is thus not to defeat any just and equitable claim, as observed by the Apex Court in the case of Jayaram Mudliar (supra), but only to subject them to the authority of the Court, which is dealing with the property, to which claims are put forward.

This principle applies not merely to actual transfer of rights, which are subject matter of litigation, but to other dealings with it by any party to the suit or proceedings, so as to affect the right of any other party thereto. If one acquires property by way of transfer or otherwise pendent lite, he is bound by the decree, which may be ultimately obtained in the proceedings pending at the time of acquisition.

52. The Hon'ble Supreme Court in the case of Sarvinder Singh Vs.

Dalip Singh20 made this legal position further clear by observing that, "the effect of the Doctrine of Lis Pendens is not to annul the transfer, but only to render it subservient to the rights of the parties to the litigation. In other

20 1996 (6) SCALE 59

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Nawab Singh, AIR 1957 Patna 729 at 731). A transfer or a dealing by a party to a suit during the pendency of the suit or proceeding is not, ipso facto void. It only cannot affect the rights of any other party to the suit under any decree or order that may be made in the suit or proceeding."

[Emphasis Supplied]

53. This position is affirmed by the Supreme Court in the case of Nagubai Vs. B. Sharma Rao (supra) by observing that, "the effect of Section 52 of the TP Act is not to wipe out the sale made pendent lite but to subordinate it to the rights based on the decree in the suit".

[Emphasis Supplied]

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54. While explaining the rationale behind Section 52 of the TP Act, the Law Commission Report, in paragraph No.3.11, observed that;

"The rationale underlying section 52 is simple enough and easily intelligible. If a party against whom relief is claimed were to be allowed to transfer his right pendente lite, then the plaintiff would be indirectly compelled to make the transferee a party to the litigation. If the first transferee is himself free to transfer his own right, then (on such a transfer), the plaintiff would be indirectly compelled to make the second transferee a party. The process could thus turn out to be endless, and so would be the hardship that might be experienced by the plaintiff, unless some restriction on the right of transfer is imposed by law.

It is precisely this object which section 52 has in view, when it enacts that the transfer or other dealing shall not affect the rights of any other party thereto under any decree or order to be passed in the suit (except with the authority of the court). Thus, the section, in effect, freezes proprietary rights as they stood at the time when the suit was instituted. No subsequent transactions can make a change in the situation as it existed when the suit was commenced. The law throws its cloak of protection around the party's rights, protecting those rights against the onslaughts of subsequent transfers. It is to be pointed out that the section does not totally invalidate the transfer. It only prevents the transfer from affecting the right of any other party. In other words, it introduces its own scheme of priority, its own scale of superior and inferior rights, consequential to transfer pendente lite. [Emphasis Supplied]

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The underlying principle is that a litigant who has obtained a judgment is entitled, not to be deprived of it, without any solid grounds. Interest rei publicae ut sit finis litium. (Public interest requires finality in litigation)"

55. The Law Commission, therefore, felt that as the principle of lis pendens embodied in Section 52 of the TP Act, being a principle of public policy, no question of good faith or bona fides arises. Hence, the transferee from one of the parties to the suit cannot assert or claim any right, title or interest adverse to any of the rights and interests acquired by another party under the decree in the suit. As a result, the interests of transferee in such transactions are definitely affected. Even the bonafide purchaser or the purchaser acting in good faith is not saved by the existing provisions of Section 52 of the TP Act. Hence, the Law Commission felt that there is definitely a need to strike a proper balance between the public convenience which seeks to bar the transfer of title during the pendency of suit or proceedings and interests of persons, who buy the property in dispute in good faith and acting bona fide; especially, when the Doctrine of Lis Pendens applies not merely to actual transfers of rights, which are subject matter of litigation, but to other dealings with it by any party to the suit or proceedings, so as to affect the right of any other party thereto.

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56. The Law Commission, therefore, in its report, after referring to the laws operating in the U.K. and other countries, recommended amendment in Section 18 of the Indian Registration Act, 1908, on the lines of the Bombay Amendment Act. In view thereof, the Rule of Lis Pendens now applies only when a notice of pendency of the suit, in which any right to involve property is directly and specifically in question, is registered under Section 18(ee) of the Registration Act. The Law Commission, accordingly, suggested corresponding amendment in Section 52 of the TP Act, on the lines of Bombay Amendment Act XIV of 1939.

57. As far as State of Maharashtra is concerned, as observed by the Law Commission in its Report, the provisions of Section 52 of the TP Act already stand amended by Bombay Act XIV of 1939. They read as follows:

52. Transfer of property pending suit relating thereto.-

(1) During the pendency in any Court having authority

within the limits of India excluding the State of

Jammu and Kashmir established beyond such limits

by the Central Government, of any suit or

proceeding which is not collusive and in which any

right to immovable property is directly and

specifically in question, if a notice of the pendency

of such suit or proceeding is registered under

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property after the notice is so registered cannot be

transferred or otherwise dealt with by any party to

the suit or proceeding so as to affect the rights of

any other party thereto under any decree or order

which may be made therein, except under the

authority of the Court and on such terms as it may

impose.

(2) Every notice of pendency of a suit or proceeding

referred to in sub-section (1) shall contain the

following particulars, namely:-

(a) the name and address of the owner of

immovable property or other person whose

right to the immovable property is in question;

(b) the description of the immovable property the

right to which is in question;

(c) the Court in which the suit or proceeding is

pending;

(d) the nature and title of the suit or proceeding;

and

(e) the date on which the suit or proceeding was

instituted.

Explanation.- For the purposes of this section, the

pendency of a suit or proceeding shall be deemed to

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commence from the date of the presentation of the

plaint or the institution of the proceedings in a Court of competent jurisdiction, and to continue until the suit or

proceeding has been disposed of by a final decree or

order and compete satisfaction or discharge of such

decree or order has been obtained, or has become

unobtainable by reason of the expiration of any period

of limitation prescribed for the execution thereof by

any law for the time being in force.

58. Section 2 of the Bombay Amendment Act XIV of 1939 provides that the Amendment Act shall apply to properties situated wholly or partly in the City of Bombay (now Mumbai) from the date of notification in the official gazette (which has been issued) and provides for similar notification extending applicability of the Amending Act to other areas to be issued (which is not shown to have been issued). Thus the amended provisions apply to properties in Mumbai and the unamended section applies to rest of the State.

59. Simultaneously, Section 18 of the Registration Act, 1908 is also amended by adding Clause (ee) to provide for registration of notices of pending suits as follows :-

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Section 18 of the Registration Act, 1908 S.18 Document of which registration is optional

Any of the following documents may be registered

under this Act, namely:

(a) Instruments (other than instrument of gift and

wills) which purport or operate to create, declare,

assign, limit or extinguish, whether in present or

in future, any right, title or interest, whether

vested or contingent, of a value less than one

hundred rupees, to or in immovable property;

(b) Instruments acknowledging the receipt or

payment of any consideration of account of the

creation, declaration, assignment, limitation or

extinction of any such right, title or interest;

(c) Leases of immovable property for any term not

exceeding one year, and leases exempted under

Section 17;

(cc) Instruments transferring or assigning any decree

or order of a Court or any award when such

decree or order or award purports or operates to

create, declare, assign, limit or extinguish,

whether in present or in future any right title or

interest, whether vested or contingent, or a value

less than one hundred rupees, to or in

immovable property;

(d) Instruments (other than wills) which purport or

operate to create, declare, assign, limit or

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extinguish any right, title or interest to or in

movable property;

(e) Wills;

(ee) notices of pending suits or proceedings

referred to in Section 52 of the Transfer of

Property Act, 1882; and

(f) All other documents not required by Section 17

to be registered.

60. As the questions posed for our consideration deal essentially with the inter-play between the Doctrine of Lis Pendens and Temporary Injunction, in this context, now we may consider the provisions of Order XXXIX Rule 1 and 2 of CPC, which can be reproduced as follows :-

"ORDER XXXIX

TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

Temporary injunctions

1. Cases in which temporary injunction may be granted.-

Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of

being wasted, damaged or alienated by any party to

the suit, or wrongfully sold in execution of a decree,or

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(b) that the defendant threatens, or intends, to remove or

dispose of his property with a view to [defrauding] his

creditors,

[(c) that the defendant threatens to dispossess, the

plaintiff or otherwise cause injury to the plaintiff in

relation to any property in dispute in the suit,]

the Court may by order grant a temporary injunction to

restrain such act, or make such other order for the

purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or

until further orders.

2. Injunction to restrain repetition or continuance of

breach.-

(1) In any suit for restraining the defendant from

committing a breach of contract or other injury of

any kind, whether compensation is claimed in the

suit or not, the plaintiff may, at any time after the

commencement of the suit, and either before or

after judgment, apply to the Court for a temporary

injunction to restrain the defendant from committing

the breach of contract or injury complained, of, or

any breach of contract or injury of a like kind arising

out of the same contract or relating to the same

property or right.

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(2) The Court may by order grant such injunction, on

such terms as to the duration of the injunction,

keeping an account, giving security, or otherwise as

the Court thinks fit."

61. In this context, it is also necessary to reproduce Rule 2A and 11 of Order XXXIX CPC, which deals with the consequences of non-obedience of Court's order of interim injunction.

"2A. Consequence

injunction-

ig of disobedience or breach of

(1) In the case of disobedience of any injunction

granted or other order made under rule 1 or rule 2

or breach of any of the terms on which the

injunction was granted or the order made, the Court

granting the injunction or making the order, or any

Court to which the suit or proceeding is transferred,

may order the property of the person guilty of such

disobedience or breach to be attached, and may

also order such person to be detained in the civil

prison for a term not exceeding three months,

unless in the meantime the Court directs his

release.

(2) No attachment made under this rule shall remain in

force for more than one year, at the end of which

time, if the disobedience or breach continues, the

property attached may be sold and out of the

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proceeds, the Court may award such compensation

as it thinks fit to the injured party and shall pay the

balance, if any, to the party entitled thereto."

Order XXXIX Rule 11 of Code of Civil Procedure, 1908 11.

Procedure on parties defying orders of Court and

committing breach of undertaking to the Court -

(1) Where the Court orders any party to a suit or

proceeding to do or not to do a thing during the

pendency of the suit or proceeding, or where any party

to a suit or proceeding gives any undertaking to the

Court to do or to refrain from doing a thing during the

pendency of the suit or proceeding, and such party

commits any default in respect of or contravenes such

order or commits a breach of such undertaking, the

Court may dismiss the suit or proceeding, if the default or contravention or breach is committed by the plaintiff

or the applicant, or strikes out the defences, if the

default or contravention or breach is committed by the

defendant or the opponent.

(2) The Court may, on sufficient cause being shown

and on such terms and conditions, as it may deem fit to

impose, restore the suit or proceeding or may hear the

party in defence, as the case may be, if the party that

has been responsible for the default or contravention

or breach, as aforesaid, makes or amends for the

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the Court:

Provided that, before passing any order under this sub-

rule, notice shall be given to the parties likely to be

affected by the order to be passed - See Mah. Govt.

Gaz., 15-9-1983, Pt. 4, Ka. p. 422 (1-10-1983)."

62. As the questions referred for our consideration also pertain to the provisions of Order XXI Rule 98 and 100 CPC, it would be necessary to reproduce those provisions also, which have been amended by the Bombay Amendment Act, 1983.

Order XXI Rule 98 of Code of Civil Procedure, 1908

Orders after adjudication

98 (1) Upon the determination of the questions referred to in

rule 101, the Court shall, in accordance with such

determination and subject to the provisions of sub-rule

(2) -

(a) make an order allowing the application and

directing that the applicant be put into the

possession of the property or dismissing the

application; or

(b) pass such other order as, in the circumstances

of the case, it may deem fit.

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(2) Where, upon such determination, the Court is

satisfied that the resistance or obstruction was

occasioned without any just cause by the

judgment-debtor or by some other person at

his instigation or on his behalf, or by any

transferee where such transfer was made

during the pendency of the suit or execution

proceedings, it shall direct that the applicant be

put into possession of the property, and where

the applicant is still resisted or obstructed in

obtaining possession, the Court may also, at

the instance of the applicant, order the

judgment-debtor, or any person acting at his

instigation or on his behalf, to be detained in

the civil prison for a term, which may extend to

thirty days. The Court may also order the

person or persons whom it holds responsible

for such resistance or obstruction to pay jointly

or severally in addition to costs, reasonable

compensation to the decree-holder or the

purchaser, as the case may be, for the delay

and expenses caused to him in obtaining

possession. Any order made under this rule

shall have the same force and be subject to

the same conditions as to appeal or otherwise

as if it were a decree. (As substituted by the

Bombay Amendment of 1983).

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Rule 100 in Order XXI of CPC - Order to be passed

upon application complaining of dispossession -

Upon the determination of the questions referred to in

Rule 101, the Court shall, in accordance with such

determination -

(a) make an order allowing the application and

directing that the applicant be put into

possession of the property or dismissing the

application; or

(b) pass such other order, as in the circumstances

of the case, it may deem fit.

Proviso :-

Where it is determined that the application is made by

a person to whom the judgment-debtor has transferred the property after the institution of the suit

in which the decree was passed, the Court shall

dismiss the application under sub-rule (a) above. (As

added by Bombay Amendment, while deleting Rule

102).

63. On the bare perusal of these provisions, thus, it can be said that Section 52 of TP Act does not restrain the parties to the suit from entering into alienation. It only makes such alienations subservient to the decision of the suit or proceedings. Whereas, order of temporary injunction restrains the parties from entering into any such alienation and if any party does so, it provides for consequences of detention and attachment of the

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64. In our considered view, two things must be emphasized to underline the difference and distinction between lis pendens, Section 52 of TP Act and Order XXXIX CPC dealing with temporary injunction, which, with great respect, has escaped the attention of the learned Single Judge deciding Kachhi Properties (supra) and passing the referring order.

Section 52 of the TP Act is relied upon, but the language thereof needs to be carefully perused and understood. The title of Section 52 itself is indicative of the intent of the Legislature, which is "Transfer of property pending suit relating thereto", The section itself speaks of pendency in any Court having authority within the limits of India, excluding the State of Jammu and Kashmir, of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question. The section states that during the pendency of such suit, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto.

However, the crucial words are "under any decree or order, which may be made therein". Such transfer cannot be except under the authority of the Court and on such terms, as it may impose. An Explanation has been

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65.

Order XXXIX of CPC provides for grant of temporary injunctions and interlocutory orders. Order XXXIX Rule 1 provides for cases in which temporary injunction may be granted and Order XXXIX Rule 2 provides for injunction to restrain repetition or continuance of breach. The injunction under Order XXXIX Rule 2 can be granted for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff, in such a suit, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. Order XXXIX Rule 2(2) empowers the Court to impose terms.

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66. The sweep of this injunction order and the power to grant it must be seen in the back-drop of the cases in which Order XXXIX Rule 1 permits grant of temporary injunction. It, firstly, enables the Court to grant an injunction in any suit. Secondly, Order XXXIX Rule 1(a) enables the grant of temporary injunction in the event any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree. This is an injunction which can be claimed by any party to the suit and can be granted, provided the conditions for grant of the same are fulfilled. Therefore, it is erroneous to assume that the temporary injunction is always and necessarily granted at the instance of the plaintiff and to prevent the property in dispute in the suit from being wasted, damaged or alienated or wrongfully sold in execution of a decree. Clause (b) of Order XXXIX Rule 1 CPC enables grant of temporary injunction, where the defendant to the suit threatens or intends to remove or dispose of his property with a view to defrauding his creditors and clause (c) enables grant of injunction when the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.

67. Thus, a temporary injunction may be granted so as to preserve the

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Secondly, it takes care of a situation where defendant to the suit threatens or intends to remove or dispose of his property with a view to defrauding his creditors. Lastly and importantly, it takes care of a threat of the defendant to dispossess the plaintiff or otherwise cause injury to the

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68. Further, we have found from the language of Order XXXIX Rule 1 CPC itself that the Court may, by order, grant temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit. Pertinently, the order granting a temporary injunction to restrain the above acts or such other order for the purpose of staying and preventing the wasting, damaging, etc. can be passed and its duration is until the disposition of the suit or until further orders.

[ Emphasis Supplied ].

69. With greatest respect to the learned Single Judge making the Reference and the parties before us, what we have noted is that Order XXXIX CPC not only deals with temporary injunction and which is the field

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70. We have, therefore, very wide sweep of the powers of granting injunction, while granting it and after granting it. Importantly, Order XXXIX Rule 5 clarifies that injunction to Corporation binds its officers, whose personal action it seeks to restrain.

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71. By Order XXXIX Rule 6, the Court is empowered to make interlocutory orders and which are not of injunction, but permitting sale of any movable property, being the subject-matter of such suit or attached before Judgment in such suit; if that is subject to speedy and natural decay, or if that is required for any other just and sufficient cause, which makes it desirable to have it sold at once. Order XXXIX Rule 7 permits, detention, preservation, inspection etc. of subject-matter of the suit and interlocutory order can be made in that behalf. How such orders have to be made is provided by Rule 8. By Order XXXIX Rule 9, party may be put in immediate possession of land, the subject-matter of the suit. Therefore, where land of the nature and categories specified in Order XXXIX Rule 9 is the subject-matter of a suit, then, in the eventuality set out and specified in Order XXXIX Rule 9, such property can be immediately put in possession of any other party to the suit claiming to have an interest therein. By Order XXXIX Rule 10, an interlocutory order in a suit for money or some other thing capable of delivery can be granted on an admission. The details with regard to such admission are also set out in Order XXXIX Rule 10, coupled with a discretion in the Court to make an interlocutory order or deposit of the money in Court or delivery of the thing capable of delivery, if that thing capable of delivery is admitted to be held in trust or that it belongs or is due to another party.

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72. The power to grant temporary injunction in a mandatory form also flows from the same provision, namely, Order XXXIX Rule 1 CPC. A temporary injunction in a mandatory form is distinct and separate from a mandatory injunction. The object of such a temporary injunction is to preserve status-quo and to prevent irretrievable injury and grant of the same is not a matter of quest.

73. By the Bombay High Court Amendment, 1983, the consequences for parties defying orders of Court or of committing breach of undertaking to the Court are spelt out. Once we appreciate the wide ranging powers conferred and vesting in a Court so as to enable it to render justice for passing an effective and binding order, then, it is futile to urge that presence of Section 52 of the TP Act, which takes care only of one situation, at best, acts as a fetter or places an embargo on the power of the Court to grant injunction. We hope that this much is enough to explain the fallacy in the understanding of these distinct legal provisions.

74. We, at once, clarify that the exercise of the discretionary power, as noted above, is depending upon a satisfaction to be reached by the Court and which is also defined in Order XXXIX Rule 1 and 2 CPC. The exercise of discretionary power in favour of the party, therefore, necessarily

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The exercise of discretion must depend upon the facts and circumstances in each case. There are defined guiding principles for granting injunction in the matter of discretion and the Court is not bound to grant such relief merely because it is lawful to do so. The exercise of discretion must be sound and reasonable and not arbitrary. The equitable principles have a defined place in this exercise of discretion. Therefore, it is further futile and unnecessary to discuss whether pendency of application seeking temporary injunction and interlocutory orders slows down the speed and pace in delivery of justice. Once the power to grant injunction is discretionary and sound and not uncontrolled, unrestricted or unbridled, then, there is no reason to be unnecessarily apprehensive. There are in- built checks and safeguards in the system and in the law itself to prevent any abuse of these discretionary powers by the parties and an arbitrary, erroneous and illegal exercise of the discretion by the Court.

75. As held in the case of Vareed Jacob Vs. Sosamma Geevarghese and Ors.21, "the source of power of the court to grant interim relief is under Section 94. However, exercise of that power can only be done if the circumstances of the case fall under the rules. Therefore, when a matter

21 AIR 2004 SC 3992

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76. Thus, having considered all these legal provisions, now we may turn once again to the questions of law referred to us. The first four questions of law necessarily refer to the issue, 'as to whether the protection given under Section 52 of the TP Act to the party against the transfer pendent lite is sufficient or equivalent to the protection given to the party against such transfer under Order XXXIX Rule 1 and 2 CPC'.

77. For deciding these questions, essentially, one has to again go to the

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Nanak Builders and Investors Private Limited and Ors., (2013) 5 SCC 397. In this case, the Apex Court has, in para No.26 of its Judgment, after reproducing Section 52 of the TP Act, was pleased to observe that, "it is well settled that the Doctrine of Lis Pendens is a

doctrine based on the ground that it is necessary for

the administration of justice that the decision of a

court in a suit should be binding not only on the

litigating parties but also on those who derive title

pendent lite. The provision of this section does not

indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of

the parties to a litigation."

78. The Apex Court then relied upon the decision of the Privy Council in Gouri Dutt Maharaj Vs. Sk. Sukur Mohammed, AIR 1948 PC 147, wherein, while discussing the principle of lis pendens, it was observed that, "the broad purpose of Section 52 is to maintain the status-quo unaffected by the act of any party to the litigation pending its determination."

79. The Apex Court also considered in this decision the observations

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Krishna Kumar Nag, AIR 1967 SC 1440, that the purchaser pendent lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him.

80. In para No.29 of its Judgment, the Apex Court also reaffirmed the legal position relating to Section 52 of the TP Act, as considered by it in Rajender Singh (supra), in which the Supreme Court, with approval of the principles laid down in Jayaram Mudaliar (supra), reiterated that;

"15. 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 a litigation over it 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 a

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to prevent the object of a pending action from being

defeated."

81. In his separate supplementing Judgment, the Hon'ble Justice T.S.

Thakur (as His Lordship was then) dealt with the effect of the sale pendent lite in view of the principles of lis pendens and was pleased to refer to earlier Judgment of Supreme Court in Nagubai Ammal (supra), wherein while interpreting Section 52 of the TP Act, it was observed that, "a transfer pendent lite is not illegal ipso jure but remains subservient to the pending litigation". In para 25 of the said Judgment of Nagubai Ammal (supra), it was held as follows :-

"25. ....... the words 'so as to affect the rights of any other

party thereto under any decree or order which may be

made therein', make it clear that the transfer is good

except to the extent that it might conflict with rights

decreed under the decree or order. It is in this view that

transfers pendent lite have been held to be valid and

operative as between the parties thereto."

82. The Hon'ble Supreme Court then also relied upon its decision in Vinod Seth Vs. Devinder Bajaj, AIR 1956 SC 593, wherein also it was affirmed that, Section 52 of the TP Act does not render transfers effected

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83. The Hon'ble Supreme Court then thought it appropriate to refer to paragraph No.42 of the Judgment in Vinod Seth's case (supra), which reads as follows :-

"42. It is well settled that the doctrine of lis pendens does not

annul the conveyance by a party to the suit, but only

renders it subservient to the rights of the other parties to

the litigation. Section 52 will not therefore render a

transaction relating to the suit property during the

pendency of the suit void but render the transfer

inoperative insofar as the other parties to the suit.

Transfer of any right title or interest in the suit property or the consequential acquisition of any right, title or interest,

during the pendency of the suit will be subject to the

decision in the suit." [Emphasis Supplied]

84. Then Hon'ble Supreme Court observed that, the decision in the case of A. Nawab John Vs. V.N. Subramaniyam, (2012) 7 SCC 738, is a recent reminder of the principle of law enunciated in the earlier decisions, as in that case the Court summed up the legal position thus :-

"18. ...... '12. ....... The mere pendency of a suit does not

prevent one of the parties from dealing with the

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section only postulates a condition that the alienation

will in no manner affect the rights of the other party

under any decree which may be passed in the suit

unless the property was alienated with the permission

of the court." [Emphasis Supplied]

85. The Hon'ble Supreme Court then was pleased to finally refer to its decision in Jayaram Mudaliar (supra), in which the observations made on the Doctrine of Lis Pendens in Commentaries on the Laws of Scotland, by Bell, are extracted with approval, in paragraph No.43, as follows :-

"43. ..... Bell, in his Commentaries on the Laws of Scotland

said, that it was grounded on the maxim : Pendente lite

nibil innovandum. He observed :

'It is a general rule which seems to have been

recognized in all regular systems of jurisprudence, that during the pendence of an action, of which the object is

to vest the property or obtain the possession of real

estate, a purchaser shall be held to take that estate as it stands in the person of the seller, and to be bound by

the claims which shall ultimately be pronounced'."

86. Thus, after taking recourse to all its earlier decisions, in paragraph No.53, the Hon'ble Supreme Court has summed up its conclusion as follows :-

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"53. There is, therefore, little room for any doubt that the transfer of the suit property pendent lite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the plaintiff in the

pending suit. (Although the above decisions do not deal

with a fact situation where the sale deed is executed in

breach of an injunction issued by a competent court, we

do not see any reason why the breach of any such

injunction should render the transfer whether by way of

an absolute sale or otherwise ineffective. The party

committing the breach may doubtless incur the liability

to be punished for the breach committed by it but the

sale by itself may remain valid as between the parties

to the transaction subject only to any directions which

the competent court may issue in the suit against the

vendor)."

87. The effect and impact in legal terms on the alienation or transfer of an immovable property in the teeth of an order of injunction is distinct and that a prohibitory or preventive order passed by a competent court restrains the party to it from indulging in the above acts. If that is breached, the consequences are that the transaction may not be void but it is illegal. We are concerned in this reference with the issue of presence of Section 52 of TP Act, 1882; is it enough protection and whether an order of injunction would still be required or should be passed to take care of the apprehension of the plaintiff ?

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88. Thus, from the above-said emphatic pronouncement of the Apex Court, it is crystal clear that the principle of lis pendens contained in Section 52 of the TP Act, neither restrains the party from alienating the property, nor it has the effect of rendering such transaction pendent lite ipso facto or ipso jure illegal or void. It also does not make such transaction void ab-initio, nor the transfer ineffective. It only makes the alienation subservient to the decision of the Court. As it does not contemplate the Court passing any order of restraining the party to the suit from alienating the said property, the party, thus, alienating the property during pendency of the litigation does not incur any consequences for breach of any order of the Court.

89. Thus, the object of Section 52 of the TP Act is merely to make the alienation subservient to the decision of the Court and not to restrain the parties from entering into it or making it void, ab-initio or illegal or making the party subject to consequences for breach of order of the Court. Thus, the effect of the Doctrine of Lis Pendens is not to annul the conveyance, but only to render it subservient to the rights of the parties to the litigation.

As held by the Apex Court in the case of Sanjay Verma (supra), "the principle underlying Section 52 of TP Act is that a litigating party is

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The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree, which may be passed in a suit."

90. Thus, as far as Section 52 of TP Act is concerned, it is apparent that it does not put any restraint on a party to the suit from alienating suit property, nor does it render the alienation illegal or void.

91. In this respect, we can also make reference to the decision of the Apex Court in the case of T.G. Ashok Kumar Vs. Govindammal and Anr., 2011 (1) ALL M.R. 462, wherein Apex Court has again reiterated that Section 52 of TP Act does not declare a pendent lite transfer by a party to the suit as void or illegal and the only effect of such transfer is that the transferee is bound by the decision in the pending litigation.

92. As against it, the object of Order XXXIX Rule 1 and 2 CPC is to totally restrain a party, pending the litigation, from creating any third party interests in the suit property and ensuring that the suit property remains in

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93. If we consider the effect of breach of such order of interim injunction, then, the consequences are laid down in Rule 2A and Rule 11 CPC. As stated in Rule 2A of Order XXXIX CPC, in the case of disobedience of any injunction granted or other order made under Rule 1 or 2 or even in the case of breach of any of the terms on which the injunction was granted or order made, the Court may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in civil prison. Thus, the consequences of disobedience or breach of injunction order entails attachment and sale of the property of the concerned person or even detention of such person in civil prison. Rule 11 of Order XXXIX of Bombay Amendment also lays down that in case of breach of any order passed by the Court, suit of the party committing the breach is liable to be dismissed or if the party committing such breach is defendant, then his defence is liable to be struck off.

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94. The provisions of the Contempt of Courts Act, 1971 also lay down the consequences for committing the breach of any order passed by the Court, including the order of interim injunction, and such consequences again provide for punishment for contempt of Court.

95. Thus, it is not only the purport, import and object of Order XXXIX Rule 1 and 2 of CPC of granting the relief of interim injunction restraining the other party from creating third party interest in the property pending the suit, is different than that of the Principle of Lis Pendens contained in Section 52 of TP Act, but even the consequences for the breach of such order are different, as it may entail into punishment, which consequences are not at all contemplated under Section 52 of TP Act.

96. Moreover, as against the transfer made pendent lite, the transfer made in violation of injunction order is held to be no transfer in the eyes of the law. The legal position in this respect is well settled that, if any property is alienated in the face of order of interim injunction passed by the Court, such alienation becomes ipso facto illegal and not at all binding on the parties thereto. It confers no right, title or interest on the transferee.

This legal position is very well illustrated in the Division Bench Judgment of this Court in the case of Keshrimal Jivji Shah (supra), to which one of us [Coram : S.C. Dharmadhikari, J.] was a Member.

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97. The question raised before the Division Bench in this case was exactly 'as to whether the transfer of an immovable property in contravention of a prohibitory or injunction order of a Court is illegal or void?' It was argued by learned counsel for the petitioner that there is no provision either in CPC or elsewhere which makes transfer of immovable property done in violation of an injunction order or a prohibitory order, null and void. It was contended that the law visits parties acting in violation of orders of Court with serious penalties, in view of the provisions of Order XXXIX Rules 1, 2, 2A of CPC and Bombay Amendment i.e. Rule 11, but it does not render the transaction itself null and void or of no legal effect. It was urged that, once the law does not make such provision, then it is not permissible for the Courts to hold that transfer in favour of petitioners is void. It was further contended by learned counsel for the petitioners in the said case that, the right, title and interest in the immovable property does not come to an end merely because a restraint is placed by Court of law on its alienation or disposal and if this is the legal position, then, there was no impediment in respondent No.2 transferring the said property in favour of petitioners.

98. As against it, learned counsel for the respondent therein has submitted that, a transaction, which is entered into either to defeat the

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99.

While dealing with these rival contentions, this Court felt it necessary to refer to the decision of the Hon'ble Supreme Court in the case of Sujit Singh & Ors. Vs. Harbans Singh & Ors., 1995 (6) SCC 50, wherein the Hon'ble Supreme Court was pleased to observe as follows :-

"23. .................. In defiance of the restraint order, the alienation / assignment was made. If we were to let it go

as such, it would defeat the ends of justice and the

prevalent public policy. When the Court intends a

particular state of affairs to exist while it is in seisin of a

lis, that state of affairs is not only required to be

maintained, but it is presumed to exist till the Court

orders otherwise. The Court, in these circumstances has

the duty, as also the right to treat the alienation /

assignment as having not taken place at all for its

purposes. Once that is so, Pritam Singh and his

assignees, respondents herein, cannot claim to be

impleaded as parties on the basis of assignment.

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Therefore, the assignees-respondents could not have

been impleaded by the trial Court as parties to the suit,

in disobedience of its orders. The principles of lis

pendens are altogether on a different footing. We do not propose to examine their involvement presently. All that is emphasized is that the assignees in the present facts

and circumstances had no cause to be impleaded as

parties to the suit. ................"

100. The Division Bench in this case also referred to the decision in Ramchandra Ganpat Shinde Vs. State of Maharashtra, 1994 (1)

Bom.C.R. 460, wherein the Hon'ble Supreme Court, in paragraph Nos.12 and 13, has observed as under :-

"12. Mr. Justice Arthur J. Venderbilt in his "The Change of Law

Reforms 1955" at pages 4 and 5, stated that :

............ It is the courts and not in the legislature that our citizens primarily feel the keen, the cutting edge of the law. If they have respect for the work of their courts, their

respect for law will survive the short comings of every

other branch of the Government; but if they lost their

respect for the work of the courts, their respect for the law

and order will vanish with it to the great detriment of

society."

13. Respect for law is one of the cardinal principles for an effective operation of the Constitution, law and the popular

Government. The faith of the people is the source and

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and though ours is a nascent democracy which has now

taken deep roots in our ethos of adjudication - be it

judicial, quasi judicial or administrative as hallmark, the faith of the people in the efficacy of judicial process would be disillusioned, if the parties are permitted to abuse its process and allowed to go scot free. It is but the primary duty and highest responsibility of the Court to correct such orders at the earliest and restore the confidence of the litigant public, in the purity of fountain of justice; remove stains on the efficacy of judicial adjudication and respect for rule of law, lest people would lose faith in the courts and take recourse to extra constitutional remedies which

is a death-knell to the rule of law."

101. The Division Bench then also made reference to the case of Satya Brata Biswal Vs. Kalyan Kumar Kisku & Ors., AIR 1994 SC 1837, in which, while outlining the importance of rule of law, administration of justice and the role of courts, the Supreme Court has observed :

"29. Apart from the fact whether A.K. Ghosh had a legal authority to sub-lease or not, it was not open to him to grant a sub-lease in violation of the order. It is no use

contending as Mr. Chidambaram, learned counsel for

the respondents, does, that there was a bar to such a

sub-lease under the terms of the status qua order. It has the effect of violating the preservation of status of the

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property. This will all the more be so when this was

done without the leave of the Court to disturb the state

of things as they then stood. It would amount to

violation of the order. The principle contained in the

maxim : Aactus Curiae Neminem Gravatt" has no

application at all to the facts of this case when in

violation of status qua order a sub-tenancy has been

created. Equally, the contention that even a trespasser

cannot be evicted without recourse to law is without

merit, because the state of affairs in relation to property

as on 15-9-1988 is what the Court is concerned with.

Such an order be circumvented by parties with impunity

and expect the Court to confer its blessings. It does not

matter that to the contempt proceedings Somani

Builders was not a party. It cannot gain an advantage in

derogation of the rights of the parties, who were

litigating originally. If the right of sub-tenancy is

recognized, how is status qua as of 15-9-1988

maintained? Hence, the grant of sub-lease contrary to

the order of status-quo is clearly illegal. All actions

including the grant of sub-lease are clearly illegal."

102. The Division Bench then expressed its inability to accept the contention of petitioners' counsel that, the decision of the Supreme Court in Sujit Singh's case (supra) should be read as restricted to proceedings under Order XXII Rule 10 CPC and the same cannot be extended to defiance of injunction order issued under Order XXXIX Rule 1 CPC. It was held in paragraph No.26 that;

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"26. ................. Once the issue is placed on the pedestal of public policy and the very faith of litigants in Rule of law and administration of justice, then it is not possible to

make the distinction or bifurcation suggested by Shri.

Naphade. It would mean that consequences of nullifying

such transaction not being provided by the statute, it

would not lose its legal efficacy even if it is in utter disregard to or in violation of or breach of prohibitory order or order of injunction issued by a Court of law. It

would mean that parties can breach and violate Court

orders openly and with impunity and neither they nor the beneficiaries suffer any consequences. It is time that we

recognize the principle that transfer of immovable

property in violation of an order of injunction or prohibition issued by Court of law, confers no right, title or interest in the transferee, as it is no transfer at all. The transferee

cannot be allowed to reap advantage or benefit from

such transfer merely because he is not party to the

proceedings in which order of injunction or other

prohibitory direction or restraint came to be issued. It is enough that the transferor is a party and the order was in force. These two conditions being satisfied, the transfer must not be upheld. If this course is not adopted, then the tendency to flout orders of courts which is increasing day

by day can never be curbed. The Court exercises its

powers on the foundation of respect and regard for its

authority by litigating public. People would loose faith and respect completely if the Court does not curb and prevent

this tendency. The note of caution of the Supreme Court

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must be consistently at the back of everybody's mind.

Therefore, Shri. Naphade is not right in the distinction

which he is trying to make." [Emphasis Supplied]

103. The Division Bench was also pleased to reject the contention of the learned counsel for the petitioners therein that, the order of injunction will bind only the transferor and not the world at large, as ownership rights are neither taken away nor restricted in any manner by order of injunction or other preventing directions. It was held that, "the order of injunction reaches and touches a party to the lis. Hence, when during pendency of an order of injunction, immovable property, which is subject-matter of restraint or injunction, is transferred, there is no choice but to declare the transaction as illegal." [Emphasis Supplied].

104. It was further held that, "an order issuing interlocutory injunction is issued with a view to preserve and protect the status-quo during the pendency of litigation. The true effect of such an order is, therefore, preservation of status-quo prevailing as on the date of issuance of the order. Any alteration in the status qua as prevailing and directed to be maintained by the Court of law is not permissible except with leave or sanction of Court. It is well settled that if courts are not to honour and implement their own orders and encourage party litigants, be they public

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105. The Court in this case was also pleased to hold that, "the Court cannot allow a party to get away with violation of its prohibitory orders and uphold the transactions contrary to and in violation of its directions on the spacious plea that only way in which the Court can regulate such acts is to visit the guilty party with penalties. It is time that the Courts reach the transaction itself and put an end to purported rights created thereby.

Failing which, it will become possible for the parties to retain fruits and benefits of such acts by suffering penalties. It is well settled that no person can take advantage of his own wrong."

106. Thus, this Court came to the categorical conclusion that a prohibitory order has the effect of placing restriction on powers of disposition and respondent No.2 therein could not have illegally created a sub-lease in favour of the petitioners. In unflinching words, it was held that, "the transfer despite the order of injunction had no legal effect and

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107. In the case of Satya Brata Biswal Vs. Kalyan Kumar Kisku & Ors.

(supra) relied upon by learned senior counsel for the appellant in this appeal also, the Supreme Court was also pleased to hold that, the granting of sub-lease contrary to the order of status-quo, which was done in the teeth of such order, is clearly illegal and all actions taken, including the grant of sub-lease, are clearly illegal. It was held that, such an order of status-quo, as passed by the Court, cannot be circumvented by parties with impunity and expect the Court to confer its blessings. It does not matter that to the contempt proceedings, sub-lessee was not a party. It cannot gain an advantage in derogation to the rights of the parties, who were litigating originally. [Emphasis Supplied]

108. Thus, it is apparent that, both, "the Principle of Lis Pendens" and "the order of temporary injunction", have not only different objects but the breaches thereof have also different consequences. The transaction made in breach of injunction order is apparently and patently illegal and binds no party, even the purchaser. Whereas, transaction effected during lis pendens does not attract the taint of illegality. It remains legal, valid and

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109. As a result, from the perspective of litigating parties also, the "Doctrine of Lis Pendens" and "Order of Temporary Injunction" have different effects. The apprehension of action under Section 2A Rule 11 of CPC of attachment of property and the punishment of contempt of courts act as deterrent to the party against whom order of injunction is running.

This deterrent has the further effect of avoiding multiplicity of transactions and procedings. The Doctrine of Lis Pendens does / cannot create such deterrent effect as it does not entail drastic consequence of attachment of property, detention in civil prison, suit being dismissed or defence being struck off, as the case may be, or punishment for contempt of court.

110. Alienation of property lis pendens is merely in the nature of a gamble, which party may willingly enter into without any apprehension of above-said consequences as such party has always the chance of winning the case and thereby retaining the property. The only consequence the party may face, is of loosing that property and nothing more. In that respect also, the transaction will always remain binding

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111. The learned Single Judge in the case of Prakash Jawale (supra) has considered in detail some of these Judgments, which make appropriate distinction between the principle of lis pendens and the order of interim injunction in the context of the object and effect of both the provisions on the pending litigation and alienation. Learned Single Judge in Prakash Jawale's case has also considered the above-said Judgment of Keshrimal Jivji Shah, rendered in the case of transfer pendent lite, in the teeth of order of interim injunction as illegal and not binding and thereafter held that, "transfer of immovable property in violation of order of injunction confers no right, title and interest on the transferee, as it is no transfer in the eyes of the law and hence it is no transaction at all. It has to be distinguished from the effect of Section 52 of the TP Act, which does not attach any illegality to a transaction which had taken place pendent lite. Thus, the order of prohibitory injunction grants protection, which is not

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112. The learned Single Judge in Prakash Jawale's case has then also rightly considered the effect of the registration of lis pendens on the transaction. Admittedly, at present the provisions of the Amendment Act XIV of 1939 apply only to the properties situate wholly or partly in the city of Mumbai. The substituted Section 52 of the TP Act, which deals with the registration of the notice of pendency of the suit, can apply to the other areas only when the notification to that effect is issued under Section (2) of the said Act. It is, admittedly, not in dispute even till date that there is no such notification issued making applicable the substituted Section 52 of the TP Act to other parts of the State of Maharashtra. Furthermore, even the substituted Section 52 of the TP Act, would apply even in respect of immovable properties in the city of Mumbai, only in a case where the notice of pendency of suit or proceedings is registered under the Indian Registration Act. Though by the provision of the said Amendment Act XIV of 1939, in Section 18 of the Registration Act, clause (ee) has been

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113. Thus, the Legislature, has not made registration of notice of lis pendens compulsory under the Registration Act. Non-registration of a document governed by Section 18 of the Registration Act does not visit a person with any adverse consequences, as registration of the document is itself optional. Therefore, conjoint reading of the provisions of Section 52 of the TP Act and Section 18 of the Registration Act, makes it clear that even in respect of the property situated in the city of Mumbai, if the notice of lis pendens is not registered, as it is optional, no other consequence follows, except the fact that Section 52 of the TP Act will have no application to the transaction effected during the pendency of the suit and the proceedings in respect of the properties concerned. Thus, even the amendments made in Section 52 of the TP Act and in Section 18 of the Registration Act also do not make the transaction illegal as such, whereas, the transaction made in breach of the injunction order is illegal and not binding.

114. Thus, if we once again have the comparative analysis of the provisions of Section 52 of the TP Act and that of Order XXXIX Rule 1 and 2 of CPC, it is clear that the protection granted by the order of interim

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115. Once it is held to be so, it automatically follows that even if plaintiff registers the notice of his suit under section 18(ee) of the Registration Act, it will not secure the plaintiff more than what an injunction could secure.

Even accepting that transferees pendent lite, in view of such registration, are deemed to have notice of such pendency of the lis and could not claim to be transferees without notices, such transfers do not have the effect of rendering the transaction illegal, which consequence is entailed in case of transaction, if it is in breach of injunction order. Therefore, it has to be held that registration of the suit or proceedings, though preferable and desirable, cannot be a substitute to the order of interim injunction, in terms of extending protection to the parties.

116. This brings us to consider the proposition of law laid down by the learned Single Judge in question No.1 while making reference that, "the transferees pendent lite are not required to be or entitled as of right to be impleaded as party to the suit and cannot resist execution proceedings in view of the provisions of Order XXIX Rule 100 of CPC, as amended by this Court."

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117. In our view, with greatest respect, this proposition of law, as laid down by the learned Single Judge, while framing question No.1 for reference, itself is not based on correct legal position, in view of the various decision of the Apex Court.

118. The decision directly on this point is of Amit Kumar Shaw Vs. Farida Khatoon, (2005) 11 SCC 403, wherein the Apex Court had an occasion to consider the effect of Section 52 of TP Act in the context of the provisions of Rule 10 of Order I; Rule 10 of Order XXII; and Section 146 of the Code and it was held as under :-

"16. The doctrine of lis pendens applies only where the lis is

pending before a court. Further pending the suit, the

transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendent lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendent

lite to the extent he has acquired interest from the

defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis

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pendens transferee a party under Order 22 Rule 10 an

alienee pendent lite may be joined as party. As already

noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests.

[Emphasis Supplied]

The court further held that, "a transferee pendent lite of an

interest in immovable property is a representative-in-

interest of the party from whom he has acquired that

interest. He is entitled to be impleaded in the suit or other

proceedings where his predecessor-in-interest is made a

party to the litigation; he is entitled to be heard in the

matter on the merits of the case." [Emphasis Supplied]

119. One can, in this respect, also place reliance upon the observations of the Apex Court in the case of Khemchand Shankar Choudhari Vs.

Vishnu Hari Patil, (1983) 1 SCC 18. In paragraph No.6, it was held as under :

"6. Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendent lite of an interest in an

immovable property, which is the subject-matter of a

suit from any of the parties to the suit, will be bound

insofar as that interest is concerned by the proceedings

in the suit. Such a transferee is a representative in

interest of the party from whom he has acquired that

interest. Rule 10 of Order 22 of the Code of Civil

Procedure clearly recognises the right of a transferee to

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be impleaded as a party to the proceedings and to be

heard before any order is made. It may be that if he

does not apply to be impleaded, he may suffer by

default on account of any order passed in the

proceedings. But if he applies to be impleaded as a

party and to be heard, he has got to be so impleaded

and heard. He can also prefer an appeal against an

order made in the said proceedings but with the leave

of the appellate court where he is not already brought

on record." [Emphasis Supplied]

120. In the latest decision of the Apex Court in the case of Thomson Press (India) Ltd. (supra), once again the Apex Court had an occasion to deal with legal position. In this case, despite having notice and knowledge of injunction order passed by the Court prohibiting transaction or alienation of suit property pending suit, the suit property was purchased by the appellant. Appellant then filed an application for impleadment under Order I Rule 10 CPC in a suit for specific performance of contract. The Division Bench of Delhi High Court rejected the said application, affirming the order of the learned Single Judge. Hence, the appellant approached the Supreme Court. The exact question, which fell for consideration in this decision, therefore, before the Apex Court was, as to whether the appellant, who is the transferor pendent lite, having notice and knowledge about pendency of the suit for specific performance and order of

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121. While answering this question, the Hon'ble Supreme Court referred to its number of earlier decisions in the cases of Anil Kumar Singh Vs.

Shivnath Mishra, (1995) 3 SCC 147; Surjit Singh Vs. Harbans Singh, (1995) 6 SCC 15; Savitri Devi Vs. District Judge, Gorakhpur, (1999) 2 SCC 577; Vijay Pratap Vs. Sambhu Saran Sinha, (1996) 10 SCC 53;

Kasturi Vs. Iyyamperumal, (2005) 6 SCC 733; and Vidur Impex and Traders (P) Ltd. Vs. Tosh Apartments (P) Ltd., (2012) 8 SCC 384, and allowed appellant's application for impleadment as party-defendant.

122. In his separate Supplementing Judgment, Hon'ble Justice T.S.

Thakur (as His Lordship then was), after referring to the effect of Lis Pendens on the transfers, was pleased to conclude that, "though a transferee pendent lite cannot seek as of right addition as a party- defendant to the suit under Order I Rule 10 CPC, he can be added as a party under Order XXII Rule 10 CPC, so that he should not suffer prejudice on account of the transferor loosing interest in the litigation post transfer." Relying upon above-said observations in the Judgments of Amit Kumar Shaw and Khemchand Shankar Chowdhary, His Lordship was

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123. In our considered, opinion, this Judgment of the Apex Court, thus, clinches the legal issue. Hence, the proposition laid down by learned Single Judge while formulating question No.1 that, "transferees pendent lite are not required to be or entitled as of right to be impleaded as parties to the suit", cannot be called as laying down correct legal position.

124. Of-course, it need not be stated that, whether, either under Order I Rule 10 CPC or Order XXII Rule 10 CPC, transferee pendent lite can be or should be made a party to the suit or not, always depends on the facts and circumstances of the particular case. Especially, depending upon the interest, which he has acquired in the suit property, that is to say, whether the interest he has acquired is substantial or just peripheral. If the transferee pendent lite acquires interest in the entire estate that forms subject matter of the disputed property, then he becomes vitally interested

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125. In view of this legal position, there cannot be any blanket proposition that transferees pendent lite are not required to be or entitled to be, as of right, impleaded as parties to the suit. Everything depends on the interest in the property, which such transferee has acquired during pendency of the litigation. If the interest is substantial, then, as held by the Apex Court, he becomes entitled to be impleaded as party to the suit. In that situation, he may also become entitled to resist the execution proceedings. His claim cannot be thrown out merely because Order XXI Rule 100 CPC, as amended by this Court, states that the obstruction raised by transferee pendent lite need not be considered and his application deserves to be straightway dismissed. Therefore, further proposition of law laid down by learned Single Judge in formulating question No.1 that Rule 100 leaves no discretion to the executing Court and provides that application by transferee pendent lite shall be rejected;

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126. Thus, it has to be held that the two legal propositions on the basis of which the learned Single Judge has formulated question No.(I) as to whether Section 52 of TP Act provides adequate protection to the parties from transfers pendent lite, are not laying down correct legal position.

Hence, it has to be held that question No.(I) is not based on correct legal premises.

127. Hence, in that way, not formulated correctly.

128. Now, without referring to those two legal premises, if we once again come to the question whether Section 52 of TP Act grants adequate protection so as to refuse the relief of temporary injunction or in the alternate, to call upon the party seeking order of temporary injunction to show that provisions of Section 52 of TP Act do not afford adequate

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129. In our considered opinion, the learned Single Judge in the case of

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Prakash Jawale (supra) has considered in its proper perspective all these aspects and after referring to the provisions of Order XXXIX Rule 1 and 2 of the CPC, the learned Single Judge has rightly held in Prakash Jawale's case that, the power to grant relief of temporary injunction under these provisions is always discretionary and, therefore, in a given case, considering the facts of the case, the Court can always come to the conclusion that the plaintiff may get adequate protection by virtue of Section 52 of TP Act. But calling upon the plaintiff in each and every case to show that the protection granted under Section 52 of the TP Act is not adequate and thereafter only to pass the order of injunction, will be totally against the settled principles under which the order of interim injunction is passed. It is a well settled requirement of law that while exercising the powers under Rules 1 and 2 of Order XXXIX CPC, the Court has to consider the issues of prima facie case; of irreparable loss and balance of convenience, where there is an apprehension shown that the defendant may transfer or alienate the suit property. Normally, if all these three ingredients are satisfied, the applicability of Section 52 of the TP Act cannot take away power of the Court to grant temporary injunction.

130. The provisions of Section 52 of the TP Act cannot act as a further hurdle in the plaintiffs seeking the relief of injunction. While exercising discretionary powers, the Court can always come to a conclusion, in the

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131. As to the fourth question formulated by learned Single Judge, 'whether it would be appropriate, in cases of claims for temporary

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However, mere imposition of such conditions cannot dispense with the effective relief of temporary injunction. As a matter of fact, the imposition of condition, like, seeking an undertaking that no equities would be claimed on account of sale or development of properties, is merely in the nature of the principle of lis pendens. Similarly, directing conditions of effecting a sale only after putting transferees to notice or requiring the party to inform the Court promptly of creation of every such interest, are in the same nature which are covered under the Doctrine of Lis Pendens.

Merely requiring the other party to inform the Court promptly of creation of every such interest, cannot solve the plaintiff's difficulty in getting the property, because, then, such party would have to be impleaded in the suit. Even calling upon the party to effect sale only after putting

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132. This brings us to the last aspect on which learned Single Judge in this case has considered, the issue relating to the overburdening of the Courts with work. According to learned Single Judge, "this question assumes importance in the light of the fact, which, in fact, should not require any expert opinion, that the Courts are over-burdened with work and, therefore, cannot pay adequate attention to genuine problems, which

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133. With greatest respect, though there cannot be and need not be any dispute about the proposition that the Courts should avoid mindless litigation, which serves no purpose, considering the constraints on the time and resources of the Courts, in our view, the Court cannot call the litigation as 'mindless', merely because there may be some other provisions also in which some relief can be granted. Once it is held that the very object, scope and effect of the provisions of Section 52 of the TP Act and Rules 1 and 2 of Order XXXIX of CPC is different and they operate in two different fields and in such situation, Section 52 of TP Act does not afford adequate and effective protection, as is afforded by Order

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XXXIX Rule 1 and 2 CPC, then the litigation in the nature of applications for temporary injunction, cannot be called as 'mindless litigation'. It is not simplicitor a case that, "the order of injunction only gives an advantage to the legal profession in making the clients go in for this illusory remedy and it is for those in the profession on either side of Bar, to examine and decide whether ethically they would like to be parties to an expedition of making the clients seek an illusory protection at substantial cost and expense in the trial as well as Appellate Courts", as observed by the learned Single Judge. But, it is a matter of making available the protection, which is given to a party under the statutory law, without putting any further fetters on such protection, even assuming that such provision may be for advantage of legal profession. Moreover, the protection afforded by the order of injunction can in no way be called as illusory, but it is definitely an effective protection, as the aforesaid discussion reveals. It saves the plaintiff from multiplicity of proceedings and also avoids his right to get property being defeated by purchaser creating equities in his favour with investment by making improvement in suit property or by carrying on construction thereon. The relief of interim injunction being discretionary one and such discretion is to be exercised under well settled principles of law, as enunciated and crystalized from time to time by the various decisions of the Apex Court and this Court, it is

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134. Though we will not and cannot deny the reality that our Courts are over-burdened with work, however, that fact will never justify our refusing to act according to law. The law confers some statutory rights on the parties, like making application for temporary injunction restraining other party from creating third party interest in the property during pendency of suit. Grant of such injunction after proper exercise of the discretion by the Court affords certain and better protection to the party against multiplicity of proceedings, against the alienee claiming equity and thereby defeating the plaintiff's rights to possession etc. The Court, therefore, cannot refuse to exercise its discretion in the grant of refusal of such protection on the specious plea that it is over-burdened and reject such applications simplicitor or put additional fetters on plaintiff's right, which are not contemplated by law. The Courts are meant to uphold the rule of law by implementing the statutory provisions of law; by exercising the discretion vested in it by law. Refusal to do so cannot be an answer to get rid from over-burdening of work. The solution for the overburdening of Court may be found somewhere else, but definitely and certainly not in refusing to

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135. The learned Single Judge, in this case as well, dealt with the question, as to whether the order of interim injunction would be akin to Mareva injunction, which operates in rem. Learned Single Judge then referred to the decision of the learned Single Judge in the Court of Appeal in (Z Ltd. Vs. A)18, (1982) 1 All England Reporter 556, and came to the conclusion that, observations of Lord Denning in respect of Mareva injunction are made in exercise of admiralty jurisdiction, which is in rem, unlike the jurisdiction in personam in suits inter-parties. According to

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136. However, in our considered opinion, once it is held that the alienations made in breach of order of injunction are illegal as they are no transactions at all in the eyes of the law and for their validity or legality, they are not depending on the fate of the suit, as happens in case of lis pendens under Section 52 of the TP Act, then the effect of such injunction is to render even those subsequent transactions and transfers also illegal.

The transaction which is illegal in itself cannot create any right in the subsequent transferee and, therefore, it is also having the effect of binding subsequent transferees. In that view of the matter, it cannot be accepted that the order of injunction will act only in personam and not in rem, as though technically it may be so, but, in effect, it may bind the other and subsequent transferees also, in rendering such alienations illegal and void ab initio.

137. As a result of the above entire discussion, we have no hesitation in concurring with the view expressed in the Judgment of Prakash Jawale's case, as it is in tune with the legal position expounded above. Accordingly, we answer the first four questions formulated for our consideration.

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Discussion on Question No.(V)

138. However, this will not complete the Judgment and the Reference, in view of the fifth question of law framed for our consideration, which pertains to the binding effect of the precedents in the event of there being conflicting decisions of co-ordinate Benches. According to learned Single Judge, as he could not find any reason to alter the view taken by him in Kachhi Properties (supra), ordinarily, the appeal could have been dismissed as untenable and as resulting in heaping upon the judicial system an unwarranted burden. However, in his opinion, "since conflicting judgments of the Courts of record tend to create confusion in the trial Courts and result in uncertainty in law, and, since on this question, there are at least three Hon'ble Judges, who seem to have accepted that Section 52 of the TP Act affords adequate protection, which view has not found favour with the Hon'ble Judge deciding Pralhad, it may be appropriate to have the matter referred to a larger Bench rather than committing judicial indiscipline of taking a different view".

139. Learned Single Judge also felt it necessary since a Division Bench of this Court in Vasant Tatoba Hargude and Others v. Dikkaya Muttaya Pujari (AIR 1980 Bombay 341), holds that judgment later in point of time would be binding in case there is a conflict in the judgments of Courts of equal strength.

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140. As the question No.5 is formulated in the context of the observations made in paragraph No.13 of Vasant Hargude's Judgment (supra) and which are quoted by learned Single Judge, they may be reproduced as follows :-

"13. The contention of Mr. Rane as to the competency of the later Bench of three Judges to overrule the ratio of the

earlier Bench of equal number of Judges need not detain

us. In the event of there being clear conflict, the decision of such later Bench would be binding on us. Secondly, the

decision in Anand Nivas case (AIR 1965 SC 414) is based

not so much on the incidence of statutory tenancy as on

the interpretation of Sections 12 to 15 of the Rent Act. All

the Judges were unanimous on statutory tenant having no

estate or property in the tenancy. Even while expressing dissent as to the extent and nature of any statutory tenan- t's "interest" in the tenancy. Sarkar, J. proceeded on the hypothesis that the power of transfer of even such "inter- est" required authority of law. The determination of true scope and import of Section 13(1)(e) and consequently of

Sections 12, 14 and 15 appear to have been assumed to

be the main point in controversy in that case and the deci- sion on the first point indicating conflict on a narrow mar-

gin appears to have been treated as mere observations.

This may have prompted the later Bench to dispense with

any need to refer the point to a larger Bench."

[Emphasis Supplied]

141. According to learned Single Judge, "as another learned Single Judge of this Court deciding Rafique Barkatulla Khan Vs. Shahenshah

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Hussain Iqbal Munshi & Ors., reported in 2011 (3) Mah.L.R 732, has arrived at the same decision followed in Kachhi Properties (supra), which decision was subsequent to the decision in Pralhad Jawale's case, it may lead to piquant situations in view of the above-said observations laid down in Vasant Tatoba Hargude's case."

142. The learned Single Judge further observed that, this observation in Vasant Tatoba Hargude's case does not appear to be preceded by any argument or discussion on the question on which this one-line pronouncement has come from the Division Bench. According to learned Single Judge, "what the Division Bench sought to convey was that earlier Judgment, as explained by later Judgment, would bind. Reading the observation to universally mean that later Judgment would bind would hit at the very root of the Doctrine of Precedent, which is based on the principle that the Judgment rendered earlier in point of time would bind successive Courts". Therefore, according to learned Single Judge, there is no question of a Judgment later in point of time having a greater binding force over a Judgment given earlier and, therefore, this stray sentence, which has also resulted in a considerable turbulence for the Courts below, would require appropriate judicial consideration. Hence, learned Single Judge formulated the question No.5 to the effect, "whether the

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143. In our considered opinion, so far as the Law of Precedent is concerned, it is undisputable that it's very premise lies in judicial discipline and in certainty of legal position. The judicial discipline requires that the Judgment rendered by higher Courts be binding on subordinate Courts, whereas certainty of legal position requires that the Judgment rendered earlier in point of time would bind successive Courts.

144. As to what is binding of the earlier decision, it is well-settled that it is only the ratio decidendi that has a precedent value. As observed by the Supreme Court in S.P. Gupta & Ors. Vs. President of India & Ors. 22, "It is elementary that what is binding on the court in a subsequent case is not the conclusion arrived at in a previous decision, but the ratio of that decision, for it is the ratio which binds as a precedent and not the conclusion."

22 AIR 1982 SC 149

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145. A case is thus only an authority for what it actually decides and not what may come to follow logically from it. Hence, it is stated that the Judgments of courts are not to be construed as Statues.

146. The following observations in The Mumbai Kamgar Sabha, Bombay Vs. Abdulbhai Faizullabhai & Ors.23 may be useful in this respect :

"It is trite, going by Anglophonic principles, that a

ruling of a superior court is binding law. It is not of

scriptural sanctity but is of ratio-wise luminosity within

the edifice of facts where the judicial lamp plays the

legal flame. Beyond those walls and de hors the

milieu, we cannot impart eternal vernal value to the

decision, exalting the doctrine of precedents into a

prison-house of bigotry, regardless of varying

circumstances and myriad developments. Realism

dictates that a judgment has to be read, subject to the

facts directly presented for consideration and not

affecting those matters which may lurk in the record.

Whatever be the position of a subordinate court's

casual observations, generalisations and subsilentio

determinations must be judiciously read by courts of

co-ordinate jurisdiction."

147. This position has been made further clear by the Hon'ble Supreme

23 (1976) 3 SCC 832

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Court in a decision in CIT Vs. Sun Engineering Works P. Ltd.24, at page 320, where it was observed :

"It is neither desirable nor permissible to pick out a word

or a sentence from the judgment of this court, divorced

from the context of the question under consideration

and treat it to be the complete 'law' declared by this

court. The judgment must be read as a whole and the

observations from the judgment have to be considered

in the light of the questions which were before this court.

A decision of this court takes its colour from the question

involved in the case in which it is rendered and, while

applying the decision to a later case, the courts must

carefully try to ascertain the true principle laid down by

the decision of this court and not to pick out words or

sentences from the judgment, divorced from the context

of the questions under consideration by this court, to

support their reasoning."

148. In the above decision, the Supreme Court, also quoted with approval, the following note of caution given by it earlier in Madhav Rao Jivaji Rao Scindia Bahadur Vs. Union of India25, that,

"It is not proper to regard a word, a clause or a

sentence occurring in a judgment of the Supreme

Court, divorced from its context, as containing a full

24 [1992] 198 ITR 297

25 (1971) 1 SCC 85

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exposition of the law on a question when the question

did not even fall to be answered in that judgment."

149. It is thus clear that it is only the ratio decidendi of a case which can be binding and not the obiter dictum. Obiter, at best, may have some persuasive efficacy, though, as far as pronouncements of Supreme Court are concerned, as per settled position of law, even its obiter dicta is also binding on High Courts and subordinate Courts.

150. The question as to whose decisions are binding, Article 141 of the Constitution, provides that, "the law declared by the Supreme Court shall be binding on all courts within the territory of India."

151. It is also well-settled that though there is no specific provision, like, Article 141 of Constitution making the law declared by the High Court binding on subordinate courts, it is implicit in the power of supervision conferred on a superior Court that the Courts subject to its supervision would confirm to the law laid down by it. It is in that view of the matter that the Supreme Court in East India Commercial Co. Ltd. Vs. Collector of Customs26, held that, "the law declared by the highest court in the State is binding on the Courts, authorities or Tribunals under its superintendence,

26 AIR 1962 SC 1893

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152. This position has been very aptly summed up by the Supreme Court in Mahadeolal Kanodia Vs. Administrator General of West Bengal27 :

"Judicial decorum no less than legal propriety forms

the basis of judicial procedure. If one thing is more

necessary in law than any other thing, it is the quality

of certainty. That quality would totally disappear if

judges of co-ordinate jurisdiction in a High Court start

overruling one another's decisions. If one Division

Bench of a High Court is unable to distinguish a

previous decision of another Division Bench, and

holding the view that the earlier decision is wrong,

itself gives effect to that view, the result would be utter

confusion. The position would be equally bad where a

judge sitting singly in the High Court is of opinion that

the previous decision of another single judge on a

question of law is wrong and gives effect to that view

instead of referring the matter to a larger Bench."

153. As held by the Apex Court in the case of Commissioner of Income-

27 AIR 1960 SC 936

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Tax Vs. Thana Electricity Supply Ltd.28, it is also a well accepted legal position that a single judge of a High Court is ordinarily bound to accept as correct judgments of courts of co-ordinate jurisdiction and of the Division Benches and of the Full Benches of his court and of the Supreme Court. Equally well settled is the position that when a Division Bench of the High Court gives a decision on a question of law, it should generally be followed by a co-ordinate Bench in the subsequent case. If it wants the earlier decision to be reconsidered, it should refer the question at issue to a larger Bench.

154. As to the binding nature of the Judgment given by the Coordinate Benches, again the law is settled, as laid down by the Apex Court, in the case of State of U.P. & Ors. Vs. Jeet S. Bisht & Anr. 29. In this reported Judgment, in paragraph No.100, while regretting to express his inability to agree with Brother Katju, J., in regard to the criticism of various orders passed in this case itself by other Benches, Justice S.B. Sinha, J. observed that;

"I am of the opinion that it is wholly inappropriate to do so. One Bench of this Court, it is trite, does not sit in

appeal over the other Bench particularly when it is a

coordinate Bench. It is equally inappropriate for us to

express total disagreement in the same matter as also in 28 (1994) 206 ITR 727 Bom.

29 (2007) 6 SCC 586

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discipline and respect for the Brother Judges."

155. Learned counsel for the appellant has also relied, in this context, on the decision of this Court in Panjumal Hassomal Advani Vs. Harpal Singh Abnashi Singh30, wherein Division Bench of this Court was pleased to observe that, "now, it is well-settled that normally one Division Bench of a High Court cannot take a view contrary to the decision given by another Bench of that Court. It is equally well settled that an interpretation (and equally a misinterpretation) of a binding decision of the Supreme Court will itself be binding subsequently on co-ordinate courts and must be got corrected by a higher Court and no co-ordinate Court on that ground may refuse to follow an earlier decision, opining that in its view the said earlier decision had wrongly understood or improperly applied a decision of a higher Court."

156. In V.R.G. & G.O.M.C. Co. Vs. State of A.P. 31, it has been observed that, "the later Bench before whom a question arises is bound by the earlier decision."

30 AIR 1975 BOMBAY 120

31 (1972) AIR SC 51

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157. In this respect, the reliance was also placed on the observations in the case of Young Vs. Bristol Aeroplane Co. Ltd. 32, wherein the following propositions have been set out in the head-note :

"The Court of Appeal is bound to follow its own decisions and those of courts of co-ordinate jurisdiction, and the 'full' court is in the same position in this respect as a division of the court consisting of three members. The only exceptions to this rule are:- (1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow; (2) the court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords; (3) the court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, e.g., where a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier court."

158. In the case of State of Gujarat and Anr. Vs. Mr. Justice R.A. Mehta (Retd.) and Ors.33, also while considering the binding effect of the Judgment, the Hon'ble Supreme Court was pleased to observe as follows :-

"35. There can be no dispute with respect to the settled legal

proposition that a judgment of this Court is binding,

32 (1944) IKB 718

33 AIR 2013 SC 693

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particularly, when the same is that of a co-ordinate

Bench, or of a larger Bench. It is also correct to state

that, even if a particular issue has not been agitated

earlier, or a particular argument was advanced, but was

not considered, the said judgment does not lose its

binding effect, provided that the point with reference to

which an argument is subsequently advanced, has

actually been decided. The decision therefore, would

not lose its authority, "merely because it was badly

argued, inadequately considered or fallaciously

reasoned". The case must be considered, taking note of

the ratio decidendi of the same i.e., the general reasons

or the general grounds upon which, the decision of the

court is based, or on the test or abstract, of the specific peculiarities of the particular case, which finally gives

rise to the decision."

159. This being the legal position of judicial discipline and hierarchy, there can be no dispute that a larger bench decision will prevail over a smaller bench decision and one Bench of the High Court or Supreme Court cannot and does not sit in appeal over the other Bench, particularly when it is a Co-ordinate Bench. However, despite that, the fact remains that there are, at times, conflicting decisions of Co-ordinate Benches of the same Court. The reasons being myriad, like, the decision of earlier Bench not brought to the notice of the later Bench and so on. Hence, the real difficulty arises in case of the conflicting Judgments on a particular

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160. For example, in the case of Sundeep Kumar Bafna Vs. State of Maharashtra and Anr.34, while dealing with the conflicting decisions in the case of Niranjan Singh Vs. Prabhakar Rajaram Kharote35, and that of Directorate of Enforcement Vs. Deepak Mahajan36, the Hon'ble Supreme Court was pleased to observe as follows :-

"It is often encountered in High Courts that two or

more mutually irreconcilable decisions of the Supreme

Court are cited at the Bar. We think that the inviolable

34 AIR 2014 SC 1745

35 1980 (2) SCC 559

36 AIR 1994 SC 1775

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recourse is to apply the earliest view as the

succeeding ones would fall in the category of per

incuriam."

161. Whereas, in the case of State of U.P. Vs. Synthetics & Chemicals Ltd.37, it was observed that;

"The later decision must prevail over the earlier

decision in a situation where an apparent conflict

between an earlier and a later decision of the Apex

Court by Benches consisting of equal number of

judges is pointed out."

162. Similar is the view expressed in the above-said decision of Division Bench in Vasant Tatoba Hargude Vs. Dikkaya Muttaya Pujari 38, by holding that, "in case of a clear conflict between two decisions of the Apex Court of equal number of Judges, the later decision would be binding on the High Court".

163. As against it, since the mechanical adherence to later decision may hinder the cause of justice in many cases, the Supreme Court has in the case of Municipal Corporation of the City of Ahmedabad Vs. Chandulal Shamaldas Patel39, held as below :-

37 1991 (4) SCC 139

38 AIR 1980 Bombay 341

39 (1970) 1 SCWR 183

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"Now the contention that the latest Judgment of a Co-

ordinate Bench is to be mechanically followed and must

have pre-eminence irrespective of any other

consideration does not commend itself to me. When

judgments of the superior court are of co-equal

benches and therefore of matching authority, then their

weight inevitably must be considered by the rationale

and the logic thereof and not by the mere fortuitous

circumstances of the time and date on which they were

rendered. It is manifest that when two directly

conflicting judgments of the superior Court and of equal

authority are extent, then both of them cannot be

binding on the courts below. Inevitably a choice though

a difficult one has to be made in such a situation. On

principles, it appears to me that the High Court must

follow the judgment which appears to it to lay down the

law more elaborately and accurately. The mere

incidence of time whether the judgments of co-equal

Benches of the Superior Court are earlier or later is a

consideration which appears to me as hardly relevant."

[Emphasis Supplied]

164. In coming to the above-said conclusion, the Apex Court placed reliance on few decisions of Courts in England, like, Hampton Vs.

Holman40, (Jessel M.R.), Miles Vs. Jarvis 41, (Kay J) and Young Vs. Bristol 40 (1877) 5 Ch D 183 41 (1883) 24 Ch D 633

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Aeroplane Co. Ltd.42 and thereafter quoted with high regard and approval the view of the great constitutional visionary Sri. H.M. Seervai, as under :

"Even though it is perhaps unconventional to quote a

living authority, it deserves recalling that Mr. Seervai in

his latest edition of his authoritative work in the

Constitutional Law of India has opined as follows :-

"*** But Judgments of the Supreme Court, which

cannot stand together, present a serious problem

to the High Courts and to subordinate Courts. It is

submitted that in such circumstances, the correct

thing is to follow that Judgment which appears to

the Court to state the law accurately or more

accurately than the other conflicting Judgments."

165. It was also observed that,

"I am keenly aware of the great difficulty of making a

choice between the decisions of a Superior Court

when they are in direct conflict with each other.

However, when such divergence arises and the

litigants' fortune depends thereon the issue cannot

possibly be evaded. Obviously in such a situation, it

is not the province of the High Courts or the

subordinate Courts to comment on the judgments of

a Superior Court which are patently entitled to

respect. Its plain duty in the interest of justice is to respectfully follow that which appears to it to state the

42 (1994) KB 718

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law accurately or in any case more accurately than

the other conflicting judgments."

166. The Full Bench of the Nagpur High Court in D.D. Bilimoria Vs.

Central Bank of India43, also held that, "in such case of conflicting authorities, the result is not that the later authority is substituted for the earlier, but that the two stand side by side conflicting with each other, thereby indicating that the subordinate courts would have to prefer one to the other and, therefore, would be at liberty to follow the one or the other."

167. Even the Five-Judge Bench of the Supreme Court in the case of Atma Ram Vs. State of Punjab44 has also indicated (at page No.527) that, "such a task may fall on and may have to be performed by the High Court.

According to the Supreme Court, when confronted with two contrary decisions of equal authority, the subordinate court is not necessarily obliged to follow the later, but would have to perform the embarrassing task "of preferring one view to another".

168. In the words of Supreme Court, "we are inclined to think that no blanket proposition can be laid down either in favour of the earlier or the later decision".

43 AIR 1943 Nag. 340 at Page 343

44 AIR 1959 SC 519

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169. The Special Bench of the Calcutta High Court in Bholanath Vs.

Madanmohan45, has also, after relying on the Judgment of the Supreme Court in Atma Ram's case (supra), held that, "the subordinate court would have to prefer one to the other and not necessarily obliged, as a matter of course, to follow either the former or the later in point of time, but must follow that one, which, according to it, is better in point of law. As old may not always be the gold, the new is also not necessarily golden and ringing out the old and bringing in the new cannot always be an invariable straight-jacket formula in determining the binding nature of precedents of co-ordinate jurisdiction."

170. This Court has also in its Full Bench decision in Kamleshkumar Ishwardas Patel Vs. Union of India and Ors.46, expressed unqualified concurrence with the law, as enunciated in the Special Bench decision of Bholanath (supra).

171. To some extent, this conflict was tried to be resolved by the Apex Court in the case of Commissioner of Income-Tax Vs. Thana Electricity Supply Ltd.47, by formulating its propositions as follows :-

45 AIR 1988 Cal. 1 46 1995 (2) Bom.C.R. 640 47 (1994) 206 ITR 727 Bom.

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172. From the foregoing discussion, the following propositions emerge :

(a) The law declared by the Supreme Court being binding

on all courts in India, the decisions of the Supreme

Court are binding on all courts, except, however, the

Supreme Court itself which is free to review the same

and depart from its earlier opinion if the situation so

warrants. What is binding is, of course, the ratio of the

decision and not every expression found therein.

(b) The decisions of the High Court are binding on the

subordinate courts and authorities or Tribunals under

its superintendence throughout the territories in

relation to which it exercises jurisdiction. It does not

extend beyond its territorial jurisdiction.

(c) The position in regard to the binding nature of the

decisions of a High Court on different Benches of the

same court may be summed up as follows :

(i) A single judge of a High Court is bound by the

decision of another single judge or a Division

Bench of the same High Court. It would be

judicial impropriety to ignore that decision.

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Judicial comity demands that a binding decision

to which his attention had been drawn should

neither be ignored nor overlooked. If he does

not find himself in agreement with the same, the

proper procedure is to refer the binding decision

and direct the papers to be placed before the

Chief Justice to enable him to constitute a larger

Bench to examine the question (see Food

Corporation of India Vs. Yadav Engineer and

Contractor).

(ii) A Division Bench of a High Court should follow

the decision of another Division Bench of equal

strength or a Full Bench of the same High

Court. If one Division Bench differs from another

Division Bench of the same High Court, it

should refer the case to a larger Bench.

(iii) Where there are conflicting decisions of courts

of co-ordinate jurisdiction, the later decision is to

be preferred if reached after full consideration of

the earlier decisions. [Emphasis Supplied]

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173. This legal position is also found reflected in the Full Bench decision of Madhya Pradesh High Court in the case of Jabalpur Bus Operators Association & Ors. Vs. State of M.P. & Anr.48, wherein it was held that;

"In case of conflict between two decisions of the Apex

Court, Benches comprising of equal number of Judges,

decision of earlier Bench is binding unless explained by the later Bench of equal strength, in which case the later

decision is binding...... No decision of Apex Court has

been brought to our notice which holds that in case of

conflict between the two decisions by equal number of

Judges, the later decision is binding in all circumstances,

or the High Courts and Subordinate Courts can follow

any decision which is found correct and accurate to the

case under consideration." [Emphasis Supplied]

174. As a matter of fact, this issue should no more detain us, as in the recent decisions, the Apex Court has settled this controversy by laying down in unequivocal terms that earlier decisions of co-equal Benches are binding on later Benches of the same size. In the case of State of U.P. and Ors. Vs. Ajay Kumar Sharma and Anr. 49, the Hon'ble Supreme Court was, in paragraph Nos.10 and 11, pleased to observe as under :-

"10. Time and again this Court has emphatically restated

the essentials and principles of 'Precedent' and of

48 AIR 2003 MP 81

49 2015 SCC OnLine SC 1259

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Stare Decisis which are a cardinal feature of the

hierarchical character of all Common Law judicial

systems. The doctrine of Precedent mandates that an

exposition of law must be followed and applied even

by coordinate or co-equal Benches and certainly by all

smaller Benches and subordinate courts. That is to

say that a smaller and a later Bench has no freedom

other than to apply the law laid down by the earlier and

larger Bench; that is the law which is said to hold the

field. Apart from Article 141, it is a policy of the courts

to stand by precedent and not to disturb a settled

point. The purpose of precedents is to bestow

predictability on judicial decisions and it is beyond cavil that certainty in law is an essential ingredient of rule of

law. A departure may only be made when a coordinate

or co-equal Bench finds the previous decision to be of

doubtful logic or efficacy and consequentially, its

judicial conscience is so perturbed and aroused that it

finds it impossible to follow the existing ratio. The

Bench must then comply with the discipline of

requesting the Hon'ble Chief Justice to constitute a

larger Bench.

11. If binding precedents even of co-ordinate strength are

not followed, the roots of continuity and certainty of

law which should be nurtured, strengthened perpetuated and proliferated will instead be

deracinated. Although spoken in a totally different

context, we are reminded of the opening stanza of the

poem 'The Second Coming' authored by William Butler

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Yeats. The lines obviously do not advert to the

principle of precedent but they are apposite in bringing

out the wisdom of this ancient and venerable principle.

"Turning and turning in the widening gyre

The falcon cannot hear the falconer; Things

fall apart; the centre cannot hold; Mere

anarchy is loosed upon the world."

175. In the decision of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Private Ltd.50, the three-Judge Bench of the Hon'ble Supreme Court was once again pleased to quote with approval the law laid down by its five-Judge Bench in the case of Central Board of Dawoodi Bohra Community Vs. State of Maharashtra51 and reiterated that the decision delivered by the Bench of larger strength is binding on any subsequent Bench of a lesser strength or co-equal strength. Thus, in this case, it was held that, when a three-Judge Bench in 2005 ignored the view taken by another three Judge Bench of 2002, as the 2005 Bench was bound by the view taken by earlier three-Judge Bench, the view expressed by 2002 Bench, being earlier in point of time, is required to be followed.

176. In view of this principle laid down by the Hon'ble Supreme Court 50 2015 SCC OnLine SC 1280

51 (2005) 2 SCC 673

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177. In view of the above-said discussion, we answer the questions placed before us for reference as follows :

Question No.(I) : Does Section 52 of the Transfer of Property Act

provide adequate protection to the parties from

transfers pendente lite since such transferees are not

required to be, or entitled as of right to be, impleaded

as parties to the suit and cannot resist execution

proceedings in view of provisions of Order XXI Rule

100 of the Code as amended by this Court ?

Answer : Section 52 of TP Act does not provide adequate

protection to the parties from transfers pendent lite.

The question does lay down a correct proposition of

law that, transferees pendent lite are not required to

be or entitled as of right to be impleaded as parties to

the suit, and they cannot resist execution proceedings

in view of provisions of Order XXI Rule 100 of the

Code, as amended by this Court.

Question No.(II) : Would plaintiffs' registering notices of their suits under

Section 18 of the Indian Registration Act (though such

registration may not be compulsory) not secure for

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plaintiffs more than what an injunction could secure

since transferees, who purchase property, pendente

lite in spite of such registration would be deemed to

have notice of pendency of the lis and could not claim

to be transferees without notice ? And, would such

registration not be preferable to clamping an injunction

on adversary ?

Answer : Mere registration of notices of pending suit cannot

secure for plaintiffs more than or even equivalent to

what an injunction could secure, as the consequences

of alienation in breach of interim injunction render

such alienation illegal and expose the party to the

consequences provided under Order XXXIX Rule 2A

and Rule 11 CPC, in addition to the punishment for

contempt of Court. Hence, such registration of notices

of pending suit, though desirable as an additional

safeguard, cannot be preferable or substituted to

clamping an order of injunction on adversary.

Question No.(III) : Since a plaintiff seeking a temporary injunction is

required to show that he would suffer irreparably if

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temporary injunction is not issued, would it be

inappropriate to expect such plaintiff to show that the

provisions of Section 52 of the Transfer of Property

Act do not afford adequate protection before an

injunction to restrain transfer pendente lite is issued ?

Answer : Though it may not be inappropriate for the Court to

expect the plaintiff to show that the provisions of

Section 52 of TP Act do not afford adequate

protection, it cannot laid down as a blanket proposition of law that in each and every case, plaintiff is expected

to show it as a condition precedent for grant of

injunction order.

Question No.(IV) : Would it be appropriate, in cases of claims for

temporary injunction to restrain transfers pendente

lite, to consider imposition of conditions short of

granting injunction, which should protect the plaintiff's

interest, like, seeking an undertaking that no equities

would be claimed on account of sale or development

of properties; effecting sales only after putting

transferees to notice that their rights would be subject

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Court promptly of creation of every such interest ?

Answer : Though depending on the facts of the case, the Court

can consider imposition of conditions, like, seeking an

undertaking that no equities would be claimed on

account of sale or development of property; effecting

sale only after putting transferees to notice that their rights would be subject to pending suit or requiring the parties to inform the Court promptly of creation of such

interest, those conditions can be in addition to or

independent of the order of injunction, but cannot be in

place of or short of granting injunction.

Question No.(V) : Whether the observation in para (13) of the judgment

in Vasant Tatoba Hargude and others v. Dikkaya

Muttaya Pujari (AIR 1980 Bombay 341) that in the

event of there being conflict, the decision of later

Bench would bind only lays down that judgment later

in point of time as explaining the earlier judgment

would bind ?

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Answer : In the light of the decisions of the Hon'ble Supreme

Court in the case of State of U.P. And Ors. Vs. Ajay

Kumar Sharma and Anr. (supra) and New India

Assurance Co. Ltd. Vs. Hilli Multipurpose Cold

Storage Pvt. Ltd. (supra), we answer this question to

the effect that, in case of conflict between the

decisions of Co-ordinate Benches, it is not the later

but the earlier one in point of time, which should be

followed and applied by the Subordinate Courts to the

facts and circumstances of a case before it, unless, of-

course, earlier decision is considered and explained in

the later decision.

178. Having answered all the five questions referred to us, we direct the Registry to place this matter, as per the present assignment, before the learned Single Judge for hearing of the Appeal.

[DR. SHALINI PHANSALKAR-JOSHI, J.] [S.C. DHARMADHIKARI, J.]

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