Interim Injunction Restraining Sale Of Property Can Be Granted For Restraining Pendente Lite Transfers: Allahabad High Court

The Allahabad High Court has held that interim injunction under Order 39 Rule 1 of the Civil Procedure Code, restraining sale of a property in suit for specific performance can be granted for restraining pendente lite transfers.

The Court was considering an Appeal against an order passed by Civil Judge wherein interim injunction Application under Order 39 Rule 1 & 2 C.P.C. filed by the Plaintiffs was rejected on merits.

The Bench of Justice Sandeep Jain observed, "The Apex Court in the case of Ramakant Ambalal Choksi (supra) has held that interim injunction under Order 39 Rule 1 of the C.P.C. can be granted in favour of the plaintiff for restraining the defendant from alienating or selling of the disputed property and a plea of Section 52 of the Transfer of Property Act cannot be taken for not granting the above relief. The Apex Court has specifically held that if Section 52 of the Transfer of Property Act was regarded to have provided, all the panacea against the pendente lite transfer then legislature would not have provided the remedy of interim injunction under Order 39 C.P.C.. The Apex Court has specifically held that in a particular case, a relief of injunction can be granted in favour of the plaintiffs for restraining pendente lite transfers in an appropriate case."

The Appellant was represented by Advocate Aishwarya Pratap Shahi, while the Respondent was represented by Advocate Krishna Mohan Garg.

Facts of the Case

The Plaintiffs had filed Original Suit against the Defendant with the averments that the defendant is owner of the disputed land which was agreed to be sold to Plaintiffs for a consideration of Rs.2.05 crores, regarding which there were talks between him and the Defendant in November, 2021 and in furtherance of that, a registered agreement to sell in presence of the witnesses was executed by the Defendant in favour of the Plaintiffs in 2022.

According to which, the defendant had already received consideration of Rs.1.85 crores prior to the execution of the agreement and it was agreed that after paying the remaining consideration of Rs.20 lacs within a period of three months, the Defendant will execute the sale deed in favour of the Plaintiffs, but inspite of the Plaintiffs readiness and willingness to fulfill the terms and conditions of the above agreement, the Defendant defaulted and failed to execute the sale deed in favour of the Plaintiffs, inspite of the legal notice by the Plaintiffs to appear before the concerned Sub-Registrar. It was the case of the Plaintiffs that when the Defendant failed to execute the sale deed in their favour, then they were compelled to file the Suit for the Relief of Specific Performance of registered agreement to sell.

During the pendency of the suit, the Plaintiffs filed an interim injunction Application under Order 39 Rule 1 and 2 of the C.P.C. on the ground that the Defendant be restrained from selling the disputed land in favour of third parties. The Trial Court by impugned order rejected the Plaintiffs’ interim injunction Application on the ground that the Plaintiffs were neither in possession of the disputed land nor registered as tenure holder in the revenue records. It was further opined that on the basis of the alleged agreement to sell, Plaintiffs were not owners of the disputed land, which belonged to several co-owners and the specific land was unidentifiable. Further, the Plaintiffs were not in possession of the disputed land. It was further opined that if any transfer of the disputed land was made by the Defendant during the pendency of the suit, then it will barred by the principle of lis-pendens which will remain binding on the transferee and as such, no irreparable injury will be caused to the Plaintiffs.

Counsel for the Plaintiff submitted that the only issue was that Defendant was intending to sell the disputed land and if that occurred, then it will create complications in the suit, as such, interim injunction application was moved to restrain the Defendant from alienating or creating third party rights in the disputed land.

Reliance was placed on Supreme Court's decision in Ramakant Ambalal Choksi vs. Harish Ambalal Choksi & Others (2024) in which it was held that notwithstanding the Rule of lis-pendens in Section 52 of the Transfer of Property Act, injunction under Order 39 CPC, restraining the pendente lite transfers can be granted.

On the other hand, Counsel for the Defendant submitted that the doctrine of lispendens enumerated in Section 52 of Transfer of Property Act is applicable and if the defendant sells the disputed land then the subsequent purchaser will be bound by the decision passed in the original suit and in view of Section 52 of the Transfer of Property Act, the Plaintiffs are not entitled to get interim injunction in their favour.

It was further submitted that merely on the basis of registered agreement to sell, no right, title and interest was created in favour of the Plaintiffs, the Plaintiffs also are not in the possession of the land, as such, neither there was any title in favour of the plaintiffs nor they are in possession, as such, the plaintiffs are not entitled to get the relief of interim injunction from the Court.

Reasoning By Court

The Court noted that the Plaintiffs are not protecting their possession of the disputed land and they are only claiming the interim relief that the defendant be restrained from alienating or transferring the disputed land in favour of the third party, which is perfectly in accordance with law.

Accepting the submissions of the Counsel for the Plaintiff, the Court was inclined to grant the required relief.

"I have considered the case laws submitted by learned counsel for the respondent, which are not applicable on the facts of the case. All the case laws deal with an agreement to sell, which reiterate the settled legal position that the agreement to sell does not confer any right, title or interest in the disputed property. Further, it has been mentioned that for obtaining the decree of specific performance in its favour, the plaintiff has to prove readiness and willingness to perform its part of the agreement......It is apparent that the plaintiffs, apprehension is that the defendant is intending to sell the disputed land and if the defendants succeeds in doing so, it will create complications in the suit and it will create third party rights and for avoiding this, the plaintiffs have filed the interim injunction application before the trial court, which has been rejected on the erroneous reasoning that neither the plaintiffs are the owner of the disputed land nor in possession, which is an admitted position of the plaintiffs, but the plaintiffs are not protecting their possession of the disputed land....", the Court held.

The Appeal was accordingly allowed.

Cause Title: Mahesh Kumar And 3 Others v. Omaira Buildcon Proprietor Lalit Gogia 2025:AHC:187262

Appearances:

Appellant- Advocate Aishwarya Pratap Shahi, Advocate Nipun Singh

Respondent- Advocate Krishna Mohan Garg

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