ORDER
1. The revision petitioner field a suit in O.S.No. 6792 of 1999, in the City Civil Court at Madras (III Assistant Judge), for declaration that the seizure and custody of the vehicle bearing Reg. No. TN-01 E.3211, 1992 Model Ashok Leyland lorry, by the defendant on 16.9.1998 is illegal and untenable, and for permanent injunction restraining the defendant from alienating, using, mortgaging of creating any encumbrances on the said vehicle and for an order of mandatory injunction, directing the defendants to release the vehicle to the plaintiff and for damages.
2. The plaint in that suit was presented into Court on 21.9.1998. The revision petitioner is the plaintiff. One Padamchand Choudhry and Anoop Chand Choudhry are the defendants. The defendants in the suit are described as doing finance in the name and style of Timco Finance and Choudhry Syndicate, and the 1st defendant is said to be the proprietor of both the finance companies.
3. The plaintiff’s case in short is that the lorry bearing Registration No. TN-01 E-3211 was purchased by the plaintiff with the financial assistance of the defendants on 3.2.1996. According to him, he has paid the instalment dues regularly. He purchased the said lorry from one Thirumalaikumar and has been in exclusive possession and enjoyment of the vehicle. The abovesaid lorry that was purchased by the plaintiff is said to be a 2nd hand lorry for which, the financial facility was availed of by the plaintiff from the defendants 1 and 2.
4. The lorry was seized on 16.9.1998. The plaint suit has been laid on 21.9.1998. Along with the plaint, the plaintiff filed three applications, one for injunction, other for mandatory injunction and the third one for appointment of
Advocate Commissioner. On these applications, notice was ordered to the defendants. The defendants entered into appearance through their counsel, but they did not choose to file any counter, inspite of grant of time. Therefore, on 17.2.1999, an order was passed, appointing Advocate Commissioner to seize the lorry. Accordingly, the Advocate-Commissioner, after complying with the formalities necessary for the purpose of executing the warrant, seized the lorry on 24.2.1999. Now, the lorry is in the custody of the Commissioner. While it is so, an application was filed in I.A.No. 3301 of 1999 by one Muthukumaraswamy, directing the return of the lorry to him. He also filed an application to implead him as a party to the suit in O.S.No. 6792 of 1998. The III Assistant Judge, City Civil Court, allowed both the applications viz., that filed to implead the 3rd party as a defendant to the suit and the other for the return of the lorry to the 3rd party. Aggrieved by the Order passed by the III Assistant Judge, in I.A.No. 3301 of 1999, which was filed by the 3rd party for direction to the respondent to return the lorry to him, the plaintiff in the suit has come up with this Revision.
5. The important point to be noted is that the suit is filed by its petitioner herein seeking several reliefs with reference to the lorry, which is said to be an oil tanker, bearing Registration No. TN-01-E3211. The main relief is for the declaration that the seizure and custody of the vehicle is illegal. One of the consequential reliefs claimed is for a permanent injunction restraining the defendants, their men, and subordinates from alienating, using, mortgaging or creating any encumbrance over the said vehicle. The 3rd party has purchased the vehicle from the defendants on 27.11.1998. In other words, after filing of the suit with reference to the lorry and after the defendants have been served with notice, the sale has been effected in favour of the 3rd party.
6. It is true that Section 52 of the Transfer of Property Act cannot apply to a movable property. It only has an impact upon the immovable property, which is the subject matter of a suit or proceeding. Here, the lorry in question is directly and specifically the subject matter of the suit. Though the provision of Section 52 of the Transfer of Property Act may not apply as such, the principle behind the same cannot be ignored. When a party to a litigation transfere to a 3rd party, the property, which is the subject matter of litigation, neither the seller of the property, nor the buyer of the property can claim any equitable remedy. Here, the lorry has been seized on 16.9.1998. Therefore, on the date when the lorry was seized, admittedly and obviously the 3rd party can not and did not have any rights or interest over the same. Subsequently, a suit has been laid and along with the suit, certain applications have been filed to which, the defendants viz., the financiers did not filed any objection. It is in that context, the sale of the very same property has been effected in favour of the 3rd party. Thus, the purchase by the 3rd party is pendente lite. Though Section 52 of the Transfer of Property Act may not apply in the strict sense, still the cardinal principle for which Section 52 of the Act stands for cannot be ignored. Therefore, it has to be stated that to begin with, the 3rd party cannot claim any prima facie case in his favour or equity. Though the sale in his
favour may not be held to have been rendered invalid by Section 52 of the Act in view of its non-application, still the purchaser of the property pending the suit, cannot put forward any justifiable right on the basis of the said sale. In that context and to that extent, it has to be held that there cannot be any prima facie case in favour of the 3rd party. Nor the balance of convenience can be held to be in favour of the 3rd party. If certain consequences follow, the 3rd party has to blame himself for the same.
7. The order passed by the lower court cannot be sustained since this important aspect of the matter has been lost sight of by the lower court. Admittedly, the property was seized by the defendants from the plaintiff on 16.9.1998. From the Commissioner’s report, it is clear that the Commissioner seized the property viz., the vehicle on 24.2.1999 from Elaiyaj Mudali Street, Korukkupet, Madras-21. At the time when the vehicle was seized, the plaintiff and his counsel alone were present. Neither the defendants nor their counsel were present there. It is also to be pointed out that the report of the Commissioner does not say that it was seized from custody of the 3rd party. The 3rd party has given his address as carrying on business in Thiruvotriyur High Road, Chennai. But the property has been seized from a different place. The Commissioner has stated in his report that on 20.2.1999, at about 11.30 am., he went to Moolakadai for seizing the vehicle. According to him, normally, the vehicle will be parked there. Again he visited on 22.2.1999 and went to the 100′ Road and found the vehicle at Elaiya Mudali Street, Korukkupet and one Murthy was the driver of the Vehicle. According to the Commissioner, at that time one Jamal, who was there, had claimed that he was the present owner of the vehicle. The Commissioner has also noted that at that time, the said Jamal was not in a position to produce the documents relating to the vehicle and at that time, the defendants’ counsel came there but he refused to receive the notice and thereafter, the Commissioner went to the police station at Korukupet for getting resistance of the police. Again he went on 24.2.1999 to Elaiya Mudali Street, Korukkupet, and seized the vehicle bearing Registration No. TN-01 E.3211 in the presence of its driver Murthy. Therefore, the report of the Commissioner clearly shows that the vehicle was not in the custody of the 3rd party, or his predecessor in title at the time when he seized the vehicle. Therefore, the III Assistant Judge was not justified in Ordering the return of the lorry to the 3rd party.
8. The 3rd party’s right to claim the vehicle has to be viewed in the light of the fact that he has purchased the property after filing of the suit and after service of summons upon the defendants and after the plaintiff has filed number of applications relating to the vehicle. When, a person who claims to have purchased the property pending suit, the court must be wary of such a case put forward by the parties. Added to that, we have the fact that the vehicle when it was seized by the Commissioner pursuant to the Order of the Court was not from the possession or custody of the 3rd party or her predecessor in title. In such circumstances, the court below was not justified in directing the return of the vehicle to the 3rd party.
9. Learned counsel for the respondents relied upon several Rulings to point out that seizure has been effected by the financiers pursuant to the terms of contract between the parties and therefore, as the law is settled that the financier is the owner and the person who availed such finance is hirer and the financier is entitled to seize the vehicle pursuant to the contract between the parties and it cannot be questioned by the plaintiff.
10. Of course, it is well settled that the financier is the owner of the vehicle. The rulings are also to the effect that pursuant to the agreement, if vehicle is seized by the financier, it cannot be questioned by the hirer. But, in the facts and circumstances of the case, this point does not arise for consideration at all. Rightly or wrongly, an order has been already passed by the lower court to seize the lorry wherever it is and hand it over to the plaintiff. That order has not been challenged at all, Perhaps if that order is challenged by the defendants in that suit or by the financier, all these questions have to be considered in that context. But, we are not called upon to consider that aspect in this revision. Pursuant to the Order and on the appointment of a Commissioner, the Commissioner has seized the vehicle and the vehicle is now in the custody of the Commissioner. The lower court has directed the vehicle to be returned to the 3rd party, which is challenged in this Revision. Therefore, this Court can only go into the question as to whether the order of the lower court directing the return of the lorry to the 3rd party is proper or not. This Court is not called upon to decide whether the order passed by the lower court directing seizure of the vehicle by appointing a Commissioner is justified or not. Therefore, the rulings relied upon by the learned counsel for the respondent are of no avail. It is also to be pointed out that the learned counsel for the petitioner submitted that the provisions of the hire-purchase agreement will not apply to the purchase of a second hand lorry. Whatever it be, in view of the discussion, it follows that the contention of the learned counsel for the respondent that the financier is the owner of the lorry and he is entitled under law to seize the vehicle does not arise for consideration in this Revision.
11. Learned counsel for the petitioner submitted that the Order passed by the trial court directing the impleading of the subsequent purchaser as a party is on the face of it untenable. Ofcourse, I do feel that something can be said against the order passed by the lower court, permitting the 3rd party to be impleaded. But inasmuch as there is no revision preferred against the said order, I refrain from deciding the same.
12. It is to be pointed out that the financier viz., the defendants 1 and 2 have not filed any applications directing the Court to return the lorry to them. The lower court has stated that the seizure of the lorry is likely to affect the claim of the 3rd party and therefore, he is entitled to get return of the lorry. This observation made by the lower court is quiet strange. When a person has purchased the property, which is the subject matter of a suit, pending that suit he cannot later on say that his right will be affected. He cannot claim a prima
facie case in his favour. He cannot claim any equity. To allow such person to get the benefit will amount to paying premium on dishonesty. I do not find any other reasons stated by the lower court for directing return of the lorry.
13. It is also to be pointed out that already an Order has been passed by him for the appointment of Commissioner to seize the lorry and to hand over the same to the plaintiff. By passing such an order, he has reviewed his own order, which is not permissible. Hence, it is clear that the order passed by the lower court cannot be sustained at all. It has been passed in a careless manner without realising the impact of the same. A purchaser pending suit cannot be allowed to have such privileges. If such a thing is permitted, the same will not only lead to miscarriage of justice but will amount to a clear affront to judicial proceedings. Hence, I have no hesitation in holding that the order passed by the III Assistant Judge, City Civil Court, in I.A.No. 3301 of 1999 in O.S.No. 6792 of 1998 on 11.3.1999 is liable to be set aside.
14. In the result, this revision is allowed with costs. The order passed by the III Assistant Judge, City Civil Court, Madras in I.A. No. 3301 of 1999 on 11.3.1999 is hereby set aside. The Commissioner is directed to hand over the seized vehicle bearing Registration No. TN-01 E3211, 1992 Model (Ashok Leyland Lorry) to the revision petitioner herein under proper acknowledgment of the same. In view of the Order passed in the revision petition, the petitions in CMP.Nos. 6691, 10966 and 10967 of 1999 shall stand dismissed.
C.R.P.No.1199 of 1999 and C.M.P. Nos. 6691, 10966 and 10967 of 1999 :-
Judgement Pronounced by A. Raman, J.
The Advocate-Commissioner reports that for the garage used for safe custody of the suit vehicle viz Tanker lorry TN-02-E- 3211 the rent has to be paid for the months of July and August 1999 and a sum of Rs. 4000 by way of rent has been paid by the Commissioner out of his pocket. Revision Petitioner in C.R.P.No. 1199 of 1999 is directed to pay the said amount Rs. 4,000 to the Commissioner towards rent for the safe custody charges paid by the Commissioner to keep the lorry for the months of August and September, 1999.