JAYARAM MUDALIAR versus AYYASWAMI & ORS.

Citation: [1973] 1 S.C.R. 139 · Decided: 12-04-1972 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Dismissed

Cited by 2 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

, 
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B 
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D 
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139 
JAYARAM MUDALIAR 
v. 
J;'YYASWAMI & ORS. 
April 12, 1972 
rs. M. SIKRI, C.J., A. N. RAY AND M. H. BEG, JJ.] 
Transfer of Property Act 4 of 1882-S. S2-Doctrine of /is pendens, 
applicabilicy of-Sale during pendency ..r suit, "'.hen invalid-Doctrine wh~ 
ther applies to voluntary sales-Whether appllf'S to sale under Land lm-
pr()Yetnent Loan.s Ac1 19 of 1883. 
Madras High Court Appeilate Side Rules, 19SS-Rule 28'01'<ier IV~ 
Validity of R.ule. 
The plaintiff-respondent filed a suit· for partition of properties men· 
tionefii in Schedule B to the plaint belon'ging to· the joint family of which 
the first defendant (plaintiff's brother) was the Karta. 
After the filine 
of the suit the first defendant and his sons made a voluntary sale of 
.some of the properties in suit by sale-deed Ex. B7, to the 
appellant. 
Certain other suit properties mentioned in Ex. BS I were sold at a public 
auction under the provisions of the Land Improvement Loans Act 19 of 
1883 in connection with arrears of a loan rak,,n by the first defendant 
for the purchase of a pump set. 
These properties were also purchased 
by the appellar.t. 
The plaintiff-respondent challenged the validity of too 
sales 
under 
Ex. 
B7 
and 
Ex. 
BS! 
relying on 
the doctrine 
of lis pendens embodied in s. S2 of the Tran5fer of Property Act. The 
trial court held that the sales were genuine and that the properties sold 
were joint family properties, negativing the claim of the first defendant 
that they were his individual 
properties. 
TI-1~ doctrine 
of Tis pendens 
was held to be applicable to the properties sold. In the decree for parti-
tion ho~'ever the tr!al court directed the Comn1issioner who \Vas to divide 
the properties by metes and bounds to allot to the share of the first de-
fendant. so far as possible, properties which were covered by. Ex. B7 
and B51. The High Court in cecond appeal held that although the. sale 
under Ex. B7 
was made to satisfy the decree in certain mortgag,~ suits 
it was a voluntary sale and could not be equatod with sales in execution 
of mortgage. decrees which are involuntary. ·So far as the revenue sale 
under Ex. BS I was concerned the High Court after setting out the terms 
of s. 7 of Act 19 of 1883 held that only that land sold wa< to be excluded 
from the purview of the principle of lis pendens for the improvement 
of \\lhich some loan was taken. It therefore modified the decrees of the 
Courts below .by giving .a directic>n that '''-rth"r evidence should be talren 
before passing a final decree to show what Jana ,;;:mid be thus excluded 
from partition. The High Court rejected the application of tte appellant 
for. leave to appeal to the Division Bench on the ground that no ora: 
request immediately after delivery of judgment was made as provided in 
R'!le 28 Order 4 of the Madras High Court Appellate Side Rules !96S. 
This Court however allc;wed special leave to appeal under Art. 136 of 
the Constitution. Apart from the writs the Court had to consider a 
preliminary objection requiring the appeal to be dimissed in limine. 
In 
this connection the validity of Rule 28 Order 4 also fell for consideration. 
HELD : (i) Per Ray and Beg, JJ.-Ru!e 28 of Order 4 of the Mad-
ras High G,Qllrt Rules does not purport to affect the power to give the -
declaratiotf contemplated by clause IS of the Letters Patent. It is evident 
that the rule is most useful· and necessary, particularly when a period of 
thirty days only for filing an appeal has been prescribed by the Limitation 
Act 1963. The judge pronouncing the judgment can decide then and there, 
iii the presence of the parties or their counsel, whether the case calls for 
a certificate. 
In a suitable case, where a party is able to prove that it 
14 0 
SUPREME COURT REPORTS 
[1973] 1 S.C R. 
was prevented due to some ca115e beyond its control from asking for lea~ 
at the proper time,. the judge concerned may condone the delay or extend 
the time by applying s. 5 of the Limit ttion Act. This salutary rule could 
not therefore be held to be ultra vires or invalid. [143 F-H) 
Penu Ba/akrishna Iyer & Ors. v, .9r1 Ariya M. Ramaswami Iyer & Ora., 
(1964] 7 S.C.R. 149, referred to. 
In the present case although the appellant was not shown to have 
attempted any explanation of failure to apply for the certificate at the 
proper time, yet, the special leave petition having been granted and the 
.case having passed without objection, beyond the stage of inte

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