Calcutta High Court (Appellete Side)
Gayatri Pal vs Netai Nandi @ Netish Nandi & Ors on 3 May, 2023
03.05.2023
SL No.11
Court No.8
(gc)
FA 113 of 2009
CAN 4 of 2016 (Old No: CAN 1864 of 2016)
CAN 5 of 2017 (Old No: CAN 2202 of 2017)
Gayatri Pal
Vs.
Netai Nandi @ Netish Nandi & Ors.
Mr. Partha Pratim Roy,
...for the Appellant.
Mr. Sukanta Chakrabarty,
Mr. Subrata Mukherjee,
...for the Respondents.
Re: CAN 4 of 2016 (Old No: CAN 1864 of 2016) This is an application for addition of party. The applicant claims to be the purchaser of the share of Gayatri Pal, since deceased. During the pendency of the suit, the appellant by a sale deed dated 11th July 2009 transferred the suit property in favour of the applicant. On 31st December, 2015, the appellant died intestate issueless. She was a widow. This application is opposed by the respondent on the ground that the transfer was not disclosed during the pendency of the suit and in any event passed in violation of the order of an injunction passed by the Trial Court during the pendency of the appeal.
This point came up for consideration before a Coordinate Bench on 17th March, 2015 where the said issue was addressed by the Coordinate Bench in the following words:-
"Having regard to the fact that such sale was made by the appellant in violation of the order of 2 injunction passed by the learned Trial Judge, the fate of the said sale is also required to be considered in case occasion arises for such consideration at the time of hearing of the appeal.
If it is ultimately held that the transfer which was made by the appellant in favour of a stranger purchaser, becomes ineffective due to sale of her share in the suit property in violation of the injunction property then it cannot be held that she lost her title in the property by virtue of such sale in favour of the stranger purchaser. Since the pendency of the suit itself has been disclosed by the appellant in the sale deed itself, the purchaser admittedly purchased the said property with notice of the suit.
Be that as it may, presently we are not concerned with the right which the purchaser has acquired in the suit property by virtue of the said sale. He has not come forward seeking leave to continue with the suit under Order 22 Rule 10 of the Code of Civil Procedure. Order 22 Rule 10 of the Code of Civil Procedure does not provide for dismissal of the suit, in case, any of the parties transfers his interest in the suit property during the pendency of the suit. It simply gives an additional right to the transferee to be added in the suit and/or appeal for continuing the suit and/or appeal by himself.
Since there is no provision either in the Transfer of Property Act or in the Civil Procedure Code which debars the plaintiff and/or the appellant to continue with the suit and/or appeal even if he transfers his share during the pendency of the suit, attracting the provision of lis pendens under Section 52 of the Transfer of Property Act, we cannot hold that the appellant has lost her locus either to proceed 3 with the appeal or to file this application for recall of the order of dismissal of the appeal. "
It appears from the sale deed that the purchaser who is now sought to be added in this appeal purchased the suit property with the knowledge of the pendency of the partition suit and that the order of injunction was operating in the said proceeding. However, the fact remains that if he has acquired an interest that needs to be adjudicated. However, the appellant would have succeeded in the appeal then the deed of purchase would have been immediately enforceable. The right of the stranger purchaser is depending upon the appeal being allowed in favour of the original appellant, since deceased. The stranger purchaser is entitled to challenge the decree on the ground that was available to the appellant and he cannot be rendered remediless.
The learned Counsel for the respondent submits that assignment of rights in favour of the stranger purchaser in violation of the order is void and he cannot be impleaded as party on the basis of such assignment. The learned Counsel has relied upon the decision of the Hon'ble Supreme Court in Surjit Singh & Ors. Vs. Harbans Singh & Ors. reported at (1995) 6 SCC 50. In the instant case, it is factually different. The transferor has categorically stated that upon her getting the suit property it would devolve upon the stranger purchaser. By the said deed, the transfer was not immediately 4 effected upon the stranger purchaser. As we have observed earlier, the original appellant was aggrieved by the preliminary decree and she preferred an appeal. It was by reason of her death, the interest of the stranger purchaser cannot be defeated. He had paid the consideration amount.
Mr. Partha Pratim Roy, the learned Counsel appearing on behalf of the applicant has submitted that in the event Gayatri Pal succeeded in the appeal then the deed executed in her favour would have been valid. It is submitted that in order to protect her interest, the appellant should be heard on merits.
Taking into consideration the earlier order of the Coordinate Bench where it has been clearly observed that the question of locus of the appellant if raised will be decided at the time of hearing of the appeal, we are permitting this application. However, keep it open for the respondent to urge his locus. We make it clear that the locus and the merits of the matter are to be heard together and the parties must be prepared to argue both the issues at the time of consideration of the appeal.
With the aforesaid rider, the application for addition of the applicant as appellant in the suit is allowed.
The application being CAN 1864 of 2016 stands disposed of.
5
The memorandum of appeal and the related cause papers shall be amended, accordingly, within two weeks from date.
A copy of the amended memorandum of appeal shall be served upon Mr. Subrata Mukherjee, the present Advocate on record for the respondents.
Re: CAN 5 of 2017 (Old No: CAN 2202 of 2017) This order also disposes of CAN 2202 of 2017. The abatement of the appeal does not arise.
Re: FA 113 of 2009 The appeal shall be listed in the Combined Monthly List of July, 2023.
The parties are directed to file their law notes in the meantime.
(Uday Kumar, J.) (Soumen Sen, J.)