Orissa High Court
Unknown vs Jasjit Singh & Ors. .... Opposite ... on 19 August, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: SANGRAM DAS
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 01-Sep-2025 18:12:17
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.M.P. No.1020 of 2025
(In the matter of an application under Article 227 of the Constitution
of India)
Siba Prasad Singh .... Petitioner
-versus-
Jasjit Singh & Ors. .... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : Mr. B.Baug, Sr.Advocate
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
19th August 2025 B.P. Routray, J.
1. Heard Mr. B.Baug, learned Senior Counsel for the Petitioner.
2. Present CMP is directed against impugned order dated 17th May 2025 of learned Senior Civil Judge (L.R.Court), Bhubaneswar passed in C.S. No.25 of 2007. The suit was filed by one Shyamsundar Hans who died on 7th August 2024. During pendency of the suit said Shyamsundar Hans, as the Plaintiff, sold the suit land in favour of present Petitioner vide R.S.D. dated 24 th August 2020.
C.M.P. No.1020 of 2025 Page 1 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: AuthenticationLocation: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:12:17 All the Defendants in the civil suit were set ex-parte much before the death of the plaintiff. They also do not appear before this court in present CMP.
3. Upon death of the sole-Plaintiff, present Petitioner who claims to be the lis pendense purchaser of the suit property filed a petition under Order 22 Rule 10 read with Section 146 of the CPC to step into the footing of the Plaintiff to continue the suit. Said prayer of the Petitioner being rejected vide impugned order dated 17th May 2025 under Annexure-5, the same is challenged in present CMP.
4. As stated earlier, all the Defendants have been set Ex-parte much prior to the death of the Plaintiff. There is no one to object the contention of the present Petitioner that he purchased the suit land by execution of registered sale deed dated 24th August 2020 during pendency of the suit. A plain reading of the provisions under Order 22 Rule 10 reveals the right of assignment created during pendency of the suit gives the right to continue the lis with liberty. The Hon'ble Supreme Court in Raj Kumar vs. Sardari Lal & Ors., (2004) 2 SCC 601 have explained the principles of under Order 22 Rule 10 and Section 146 of the CPC as follows:-
5. "The doctrine of lis pendens expressed in the maxim "ut lite pendente nihil innovetur" (during a litigation nothing C.M.P. No.1020 of 2025 Page 2 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:12:17 new should be introduced) has been statutorily incorporated in Section 52 of the Transfer of Property Act, 1882. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successful plaintiff of the fruits of the decree. The transferee pendente lite is treated in the eye of the law as a representative-in-interest of the judgment-debtor and held bound by the decree passed against the judgment-debtor though neither has the defendant chosen to bring the transferee on record by apprising his opponent and the court of the transfer made by him nor has the transferee chosen to come on record by taking recourse to Order 22 Rule 10 CPC. In case of an assignment, creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 CPC confers a discretion on the court hearing the suit to grant leave for the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the court.
Though not brought on record the lis pendens transferee remains bound by the decree.
xxx xxx xxx
8. A lis pendens transferee from the defendant, though not arrayed as a party in the suit, is still a person claiming under the defendant. The same principle of law is recognized in a different perspective by Rule 16 of Order 21 CPC which speaks of transfer or assignment inter vivos or by operation of law made by the plaintiff decree- holder. The transferee may apply for execution of the decree of the court which passed it and the decree will be C.M.P. No.1020 of 2025 Page 3 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:12:17 available for execution in the same manner and subject to the same conditions as if the application were made by the decree-holder. It is interesting to note that a provision like Section 146 CPC was not to be found in the preceding Code and was for the first time incorporated in CPC of 1908. In Order 21 Rule 16 also an explanation was inserted through amendment made by Act 104 of 1976 w.e.f. 1-2-1977, whereby the operation of Section 146 CPC was allowed to prevail independent of Order 21 Rule 16 CPC.
xxx xxx xxx
10. The law laid down by a four-Judge Bench of this Court in Saila Bala Dassi v. Nirmala Sundari Dassi is apt for resolving the issue arising for decision herein. A transferee of property from the defendant during the pendency of the suit sought himself to be brought on record at the stage of appeal. The High Court dismissed the application as it was pressed only by reference to Order 22 Rule 10 CPC and it was conceded by the applicant that, not being a person who had obtained a transfer pending appeal, he was not covered within the scope of Order 22 Rule 10. In an appeal preferred by such transferee, this Court upheld the view of the High Court that a transferee prior to the filing of the appeal could not be brought on record in appeal by reference to Order 22 Rule 10 CPC. However, the Court held that an appeal is a proceeding for the purpose of Section 146 and further, the expression "claiming under" is wide enough to include cases of devolution and assignment mentioned in Order 22 Rule 10. Whoever is entitled to be but has not been C.M.P. No.1020 of 2025 Page 4 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:12:17 brought on record under Order 22 Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code. A person having acquired an interest in suit property during the pendency of the suit and seeking to be brought on record at the stage of the appeal can do so by reference to Section 146 CPC which provision being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. Their Lordships held that being a purchaser pendente lite, a person will be bound by the proceedings taken by the successful party in execution of decree and justice requires that such purchaser should be given an opportunity to protect his rights.
11. In Saila Bala Dassi case an earlier decision of this Court in Jugalkishore Saraf v. Raw Cotton Co. Ltd. was followed. It was a case where during the pendency of a suit for recovery of a debt from the defendant the plaintiff in that suit had transferred to a third person all the books and other debts. This Court held that the position of the transferor vis-à-vis the transferee is nothing more than that of a benamidar for the latter and when the decree is passed for the recovery of that debt, it is the latter who is the real owner of the decree. When the transferee becomes the owner of the decree immediately on its passing, he must, in relation to the decree, be also regarded as person claiming under the transferor. The transferee is entitled under Section 146 to make an application for execution which the original decree-holder could do. The executing C.M.P. No.1020 of 2025 Page 5 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:12:17 court can apply its mind to the simple equitable principle which operates to transfer the beneficent interest in the after-acquired decree under Section 146. As the assignee from the plaintiff of the debt which was the entire subject- matter of the suit the transferee was entitled to be brought on record under Order 22 Rule 10 and must, therefore, be also regarded as a representative of the plaintiff within the meaning of Section 47 CPC.
xxx xxx xxx
15. We hold that a lis pendens transferee, though not brought on record under Order 22 Rule 10 CPC, is entitled to move an application under Order 9 Rule 13 to set aside a decree passed against his transferor, the defendant in the suit."
5. In Zila Singh & Ors. Vs. Hazari & Ors., (1979) 3 SCC 265, it has been explained as follows:-
13. "Section 146 came in for consideration in Jugalkishore Saraf v. Raw Cotton Co. Ltd. In that case the facts were that the plaintiffs in a pending suit for recovery of debt transferred to another person all book and other debts due to them including the debt involved in the suit. The transferees did not apply to be joined as parties in the pending suit and the suit continued in the name of the original plaintiffs and ended in a decree. Subsequently the transferees as decree-holders applied for execution of the decree against the judgment-debtor and upon a notice being issued, a contention was raised that the application was not maintainable under Order XXI Rule 16. One C.M.P. No.1020 of 2025 Page 6 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:12:17 submission was that even if the application for execution was not maintainable under Order 21 Rule 16, it would certainly be maintainable at the instance of the transferees of the original debt under Section 146. Accepting this contention Das, J. observed that a person may conceivably become entitled to the benefits of a decree without being a transferee of the decree by assignment in writing or by operation of law. In that situation the person so becoming the owner of the decree may well be regarded as a person claiming under the decree-holder. It was further held in that case that the transferees of the debt derived their title to the debt by transfer from the transferors and when the decree was passed in relation to decree they must also be regarded as persons claiming under the transferors and accordingly they would be entitled to make an application for execution under Section 146 of the Code of Civil Procedure. Bhagwati, J. in a separate and concurring judgment on this point observed that the only meaning that can be assigned to the expression "save as otherwise provided by this Code" in Section 146 is that if a transferee of the decree can avail himself of the provision contained under Order XXI Rule 16 by establishing that he is such a transferee he must only avail himself of that provision. But if he fails to establish his title as a transferee by assignment in writing or by operation of law within the meaning of Order XXI Rule 16 there is nothing in that provision which prohibits him from availing himself of Section 146 if the provision of that section can be availed of by him. It would thus appear that if the sale deed in respect of land on its proper construction would show that the decree itself was assigned obviously the application for execution would be maintainable under C.M.P. No.1020 of 2025 Page 7 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:12:17 Order XXI Rule 16. But if the appellants do not fall within the four corners of Order XXI Rule 16 and they appear not to fall within the four corners of it, because though the land, the subject-matter of the decree, is sold to appellants, the decree itself is not assigned, they would nonetheless be able to maintain application for execution under Section 146 as persons claiming under the decree-holder.
The respondents cannot have both the ways. If the deed evidenced transfer of decree by assignment then Order XXI Rule 16 would be attracted but if, as it appears, there is no transfer of decree by assignment, the lands having been sold by the decree-holder after perfecting his title and purchased by the present appellants they would be persons claiming under the original pre-emptor decree- holder Neki and if Neki could have made an application for execution of the decree as decree-holder, the present appellants, as purchasers of land from Neki would certainly be claiming under Neki and, therefore, their application for execution would certainly be maintainable under Section 146. In this connection it would be advantageous to refer to Saila Bala Dassi v. Nirmala Sundari Dassi wherein it has been in terms held that Section 146 was introduced for the first time in Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they came to be vested by devolution or assignment and being a beneficent provision should be construed liberally so as to advance justice and not in a restricted or technical sense. Viewed from this angle the present appellants must succeed because they purchased land from pre-emptor Neki and the validity of sale being now beyond dispute, they are persons claiming under Neki whose right to execute the C.M.P. No.1020 of 2025 Page 8 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:12:17 decree was never disputed and, therefore, appellants claiming under the vendor Neki would be able to maintain an application for execution under Section 146 of the Code of Civil Procedure. Appellants are thus entitled to execute the decree for possession."
6. This Court in the case of Upendranath Samantasinghar & Anr. vs. Bikash Chandra Mohapatra & Anr., 2015 (I) ILR-CUT-
835, relying on Raj Kumar (supra) have held that, "transferee pendente lite is treated in the eye of law as representative of the judgment debtor and is bound by the decree passed against the judgment debtor even if the defendant had chosen not to bring the transferee on record by apprising his opponent."
7. In the case at hand as stated above, present Petitioner's contention that he has purchased the suit land on 24th August 2020 vide R.S.D. No.11082005748 remains unchallenged and thereby his claim of purchasing the land pending the lis is prima facie satisfied.
Thus, upon death of sole-Plaintiff, from whom the Petitioner claims to have purchased the land, cannot be left at large on the plea of filing a separate suit. It needs to be stated that such a course to be adopted by the subsequent purchaser pending the lis would amount C.M.P. No.1020 of 2025 Page 9 of 10 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:12:17 to abuse of process of Court since he has the right as an assignee to continue the lis as pursued by his vendor for such reliefs. Therefore, the rejection of the prayer of the Petitioner by learned Trial Court, as in the impugned order, cannot be held as justified. The same is thus liable to be set aside.
8. In the result, the impugned order dated 17th May 2025 under Annexure-5 is set aside and the prayer of the Petitioner to be impleaded as the Plaintiff is allowed. The CMP is accordingly disposed of.
(B.P. Routray) Judge S.Das/Sr.Steno C.M.P. No.1020 of 2025 Page 10 of 10