Andhra HC (Pre-Telangana)
Petakamsetty Ramaswamy Naidu And Ors. vs Kandrupu Kondadu And Ors. on 22 December, 2004
Equivalent citations: 2005(3)ALD853, 2005(4)ALT313
ORDER D.S.R. Varma, J.
1. Heard both sides.
2. Since both the applications are inter-related and they have substantial bearing on the disposal of the main appeal, with the consent of both the parties, they are being disposed of by this common order.
3. A.S.M.P. No. 12019 of 2004 is filed under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure to bring the petitioners on record as Respondent Nos.5 to 17 in the appeal.
4. A.S.M.P. No. 15768 of 2004 is filed under Order 23 Rule 1 of the Code of Civil Procedure seeking permission of this Court to withdraw the appeal.
5. The appellant is the first defendant, the first respondent is the plaintiff and the Respondents 2 to 4 are the Defendants 2 to 4 respectively in the suit.
6. For the sake of convenience, the parties will be referred to as per their array in the suit.
7. Few facts, which are necessary, to be mentioned for disposal of the present applications, are as under:
The plaintiff filed the suit in O.S. No. 132 of 1995 for specific performance of an agreement of sale, dated 16-8-1993, said to have been entered into between himself, the first defendant and his predeceased son. Since the son of the first defendant died, his legal representatives i.e., his wife and children were brought on record as Defendant Nos.2 to 4 in the suit.
In the suit, the plaintiff avers that the first defendant and his late son executed an agreement of sale, dated 16-8-1993, which is marked as Ex.A-1, in favour of the plaintiff. Since that agreement of sale was not adhered to, the suit came to be filed and eventually the said suit was decreed by the Court below through judgment and decree, dated 12-2-2001. Hence, the present appeal is filed by Defendant No. 1.
8. It is on record that, initially, in C.M.P. No. 5671 of 2001, by order, dated 21-3-2001, this Court granted interim stay of execution of the judgment and decree, dated 22-3-2001, in O.S. No. 132 of 1995, passed by the Court below. The said order of interim stay is still in force.
9. Further, during the subsistence of the said order of interim stay, the petitioners in A.S.M.P. No. 12091 of 2004 have purchased the suit schedule property, covered by the agreement of sale, dated 16-8-1993, which is marked as Ex.A-1.
10. At this point of time, the first defendant filed the present application in A.S.M.P. No. 15768 of 2004, under Order 23 Rule 1 of the Code of Civil Procedure seeking permission of this Court to withdraw the present appeal on the ground that during the pendency of the present appeal and in obedience to the impugned judgment and decree of the Court below, a registered sale deed had been executed by him in favour of the plaintiff. This is being opposed not only by the Defendants 2 to 4, (who are Respondent Nos.2 to 4 in the present appeal) but also by the petitioners in A.S.M.P. No. 12019 of 2004, who are seeking to implead themselves as Respondent Nos.5 to 17 in the present appeal.
11. The grounds for filing the applications - the first one in A.S.M.P. No. 12019 of 2004 for impleadment of respondents and the second one in A.S.M.P. No. 15768 of 2004, filed by the Appellant/Defendant No. 1 for withdrawal of the main appeal in A.S. No. 986 of 2001 and opposing the same by the other party are one and the same and they are inter related.
12. Further, during the subsistence of the suit, a General Power of Attorney had been executed by the first defendant and his son in favour of third party (the first petitioner in A.S.M.P. No. 12019 of 2004 and proposed Respondent No. 5 in the present appeal) and in the capacity of General Power of Attorney Holder, the said third party had executed a registered sale deed in favour of the other petitioners i.e., Petitioner Nos.2 to 13 in the said application in A.S.M.P. No. 12019 of 2004.
13. Hence, the petitioners in the application in A.S.M.P. No. 12019 of 2004 are seeking their impleadment as Respondent Nos.5 to 18 in the present appeal.
14. The questions that arise for consideration are:
1. Whether the petitioners in A.S.M.P. No. 12019 of 2004 are entitled to be impleaded as Respondent Nos.5 to 18 in the present appeal?
2. Whether the application filed by D.1 under Order 23 Rule 1 C.P.C. can be allowed or not?
15. In Re Question No. 1: The first question that falls for consideration is as to whether the petitioners in A.S.M.P. No. 12019 of 2004 are entitled to be impleaded as Respondent Nos.5 to 17 in the present appeal?
16. Sri M.V.S. Suresh Kumar, the learned Counsel appearing for the implead petitioners, submits that the first defendant had contested the suit vigorously by filing written statement with a specific averment that the agreement of sale, dated 16-8-1993, was a forged document; that the first defendant, his four daughters and their children have executed a General Power of Attorney-cum-agreement of sale in favour of the Petitioner Nos.1 and 2 in A.S.M.P. No. 12019 of 2004 and two others, and those persons, in turn, executed the sale deeds in favour of the other proposed respondents and consequently such purchasers have obtained ownership and title over the suit schedule property, having purchased the plaint schedule property.
17. In other words, his contention was that substantial interest had been created by the first defendant and his family members through the General Power of Attorney in favour of some of the proposed respondents and hence they are absolutely necessary parties to the present appeal. When, eventually, the suit was decreed in favour of the plaintiff (the first respondent in the appeal), the first defendant had filed the present appeal and obtained an order of interim stay of execution of the judgment and decree in O.S. No. 132 of 1995, dated 12-2-2001, passed by the Court below.
18. He further submits that by virtue of the said sale deeds in favour of the proposed respondents, they are necessary and proper parties to the present appeal and they have a right to continue the appeal by opposing any agreement being entered into between the first defendant and the plaintiff.
19. It is his further contention that, in fact, the present application under Order 1 Rule 10 of the Code of Civil Procedure ought have been filed under Order 22 Rule 10 of the Code of Civil Procedure, having regard to the present facts and circumstances.
20. On the other hand, Sri Surya Prakash Rao, the learned Counsel appearing on behalf of the appellant/first defendant, submits that the first defendant has every right to withdraw the appeal under Sub-rule (1) of Rule 1 of Order 23 of the Code of Civil Procedure inasmuch as the said withdrawal sought, is an unconditional one amounting to abandoning the very claim in the appeal. He further contends that the implead petitioners cannot contend that the sale deed executed by the first defendant in favour of the plaintiff was collusive in nature for the reason that the sale deed was executed in obedience to the judgment and decree, dated 12-2-2001, passed by the Court below. He places reliance on the judgments rendered by the Supreme Court in (1). Thakur Balaram Singh v. Achuta Rao, 1978 (2) An. WR 139 (2) Bijayananda Patnaik v. Satrughna Sahu, and (3). R. Ramamurthi v. V. Rajeswararao, .
21. Order 23 Rule 1 C.P.C., is extracted for ready reference, which reads as follows:
"At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied-
(a) That a suit must fail by reason of some formal defect, or
(b) That there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in Sub-rule (2) he shall be liable for such costs as the Court may awarded and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."
22. For ready reference, the relevant portion at Paragraph No. 11 of the judgment of our High Court in Thakur Balaram Singh's case (supra) is extracted hereunder:
"It is clear from the aforesaid provisions that the plaintiff can withdraw his suit under Order 23 Rule 1(1), Civil Procedure Code, without the permission of the Court; but he will then be precluded from instituting any fresh suit in respect of the same subject-matter or part thereof on the same cause of action. Under Sub-rule (2) a plaintiff may in the circumstances mentioned therein be permitted by the Court to withdraw from such suit with liberty to institute a fresh suit in respect of the same subject-matter and on the same cause of action subject to the condition that the Court should be satisfied that the suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit in respect of the same subject-matter of the suit or part of a claim.
23. Again, at Paragraph No. 21 in Thakur Balaram Singh's case (supra) it was observed as under:
"In another decision of the same High Court, reported in the same volume, in Kanhaiya v. Daneswari, the learned Judge, Sheth, held as follows:
"A plaintiff-appellant has no right under Order 23 Rule 1(1), Civil Procedure Code, to withdraw the suit when rights have accrued to the respondents under the decree. Merely because an appeal has been filed it cannot be said that no rights have vested in or accrued to the respondents under the decree sought to be challenged. That decree can be enforced in spite of the pendency of the second appeal. When the appeal already stands abated with regard to one of the appellants and once of the respondents, it is not open to the appellant to take away the vested rights of the parties.
In Kedar Nath v. Chandra Kiran, Beg, J. held as follows:
"Order 23 Rule 1(1), Civil Procedure Code, does not give an absolute right to the plaintiff to withdraw the suit, at any rate at the stage of second appeal. The matter lies within the discretion of the Court. Where the case is at that stage and the Trial Court has given a finding fact in favour of the defendant which is binding in second appeal the Court should not deprive the defendant of the plea of res judicata, by allowing the plaintiff to withdraw the suit at that stage unless the latter is able to make out some good ground for giving him the permission."
With respect I agree with the view taken by the later two rulings of the Allahabad High Court which is in accordance with the view taken by the Full Bench of the Madras High Court in Kamayya v. Papayya and of the Privy Council in Ravaneswar v. Baijnath Ram. The decision of the Allahabad High Court in Suraj Pal v. Charan Singh was dissented from by the Division Bench of this Court in Narahari Nagaiah v. K. Sivamma and Ors. From the aforesaid rulings it follows:
(1) That the plaintiff has an absolute right to withdraw his suit before the passing of a decree under Order 23 Rule 1(1), Civil Procedure Code;
(2) That the plaintiff can also apply for withdrawal of the suit with liberty to file a fresh suit on the same cause of action under Order 23 Rule 1(1), Civil Procedure Code, provided the conditions therein are satisfied;
(3) That the plaintiff can apply for withdrawal of the suit at the appellate stage; but the grant of permission will be refused if it results in prejudice or deprival of any rights which became vested or accrued to the defendants by reason of the findings recorded by the Trial Court, or the Appellate Court, as the case may be.
(4) That the question of granting liberty to file a fresh suit on the same cause of action would not arise where permission for withdrawal is granted under Order 23 Rule 1(1), Civil Procedure Code."
24. For ready reference, the relevant portion of the judgment of the Apex Court in Bijayananda Patnaik's case (supra) is extracted hereunder:
"When an election appeal was sought to be withdrawn it was observed that where an application for withdrawal of a suit is made under Order 23 Rule 1(1), the Court has to allow that application and the suit stands withdrawn. It is only under Sub-rule (2) where a suit is not being withdrawn absolutely but is being withdrawn on condition that the plaintiff may be permitted to institute a fresh suit for the same subject-matter that the permission of the Court for such withdrawal is necessary. In Hulas Rai Baij Nath v. Firm K.B. Dass and Co., , a suit for rendition of accounts had been filed. The defence was that the accounts had been settled before any preliminary decree for rendition of accounts was passed. The plaintiff applied for withdrawal of the suit. This Court held that there was no ground on which the Court refuse to allow withdrawal of the suit because no vested right in favour of the defendant had come into existence at the point of time when withdrawal was sought. Certain situations were envisaged where different considerations might arise e.g., where a set off might have been claimed under Order 8 of the C.P.C. or a counter-claim might have been filed. Even if the defendant in a suit for rendition of accounts could claim a decree for the amount due to him after rendition of accounts no such right could possibly be held to exist before the Court passed a preliminary decree for rendition of accounts. It was particularly noted that in the case of a suit between principal and agent it was the principal alone who normally had the right to claim rendition of accounts from the agent."
25. For ready reference, the relevant portions at Paragraph No. 6 of the judgment of the Apex Court R. Ramamurthi's case (supra) is extracted hereunder:
"Learned Counsel for the parties agreed before us that the only question which survives and which requires our decision is whether in the circumstances of the present case the Trial Court could allow withdrawal of the suit. This involves the determination of the correct position under Order 23 Rule 1 of the C.P.C., in respect of a suit for partition of joint property in which the provisions of the Partition Act have been invoked or are sought to be applied. Order 23 Rule 1 of the C.P.C. to the extent it is material, is as follows:
"Order 23 Rule 1. At any time after the institution of the suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
Rule 2 Where the Court is satisfied-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.
Rule 3..............
26. All the abovementioned decisions deal with the right of the parties to withdraw the suit claim.
27. Sri Suryaprakash Rao, learned Counsel appearing for Defendant No. 1 places heavy reliance on the judgment of the Apex Court in Bibi Zubaida Khatoon v. Nabi Hassaan Saheb, and Rashtriya Mill Mazdoor Sangh v. State of Maharashtra, .
28. Sri Movva Chandrasekhara Rao, the learned Counsel appearing on behalf of the plaintiff (the first respondent in the present appeal), submits that the plaintiff purchased the plaint schedule property under an agreement of sale, dated 16-8-1993, and that the plea of forgery was taken in the suit despite which the suit was decreed disbelieving the stand of the first defendant regarding forgery. He further submits that the implead petitioners had the definite knowledge about the agreement of sale that was entered into between the plaintiff and the first defendant and pursuant to the judgment and decree of the Court below and in obedience to the same, the plaintiff got the sale deed executed by the first defendant on 14-7-2004.
29. The learned Counsel appearing on behalf of the plaintiff, further submits that the alleged sale by the implead petitioners, with knowledge, during the pendency of the suit, is hit by Section 52 of the Transfer of Property Act and therefore they are not entitled to be impleaded as party respondents to the present appeal. It is his further submission that the powers of the Court under Order 1 Rule 10 of the Code of Civil Procedure are much wider than the powers under Order 22 Rule 10 of the Code of Civil Procedure. According to him, while exercising the jurisdiction under Order 1 Rule 10 of the Code of Civil Procedure, the Court if satisfied that a particular party is necessary or proper for the adjudication and arriving at a just conclusion, basing on the facts and circumstances of the case, be added as parties by the Court; that whereas while exercising the jurisdiction under Order 22 Rule 10 of the Code of Civil Procedure, the scope and jurisdiction of the Court is restricted to the contingency mentioned in the said provision. However, in either case, since the alleged sale transaction between the proposed parties and the first defendant even during the subsistence of the suit is hit by Section 52 of the Transfer of Property Act.
30. It is not in dispute that, of course, during the pendency of the present appeal, on other aspects the learned Counsel appearing on behalf of the plaintiff adopted the contentions raised by the first defendant. However, on all other material aspects, he adopts the arguments of Sri Surya Prakash Rao, the learned Counsel appearing on behalf of the first defendant.
31. Sri M.V.S. Suresh Kumar, the learned Counsel appearing on behalf of the implead petitioners, relies on (1) In Re Baliarsimhulu Bahadur, AIR 1963 AP 46 (V50 C18), (2) Khemchand S. Choudhari v. Vishnu H. Patil, and (3) Saila Bala v. Nirmala Sundari, . He further contends that the judgment of the Apex Court in Thakur Balaram Singh's case (supra), which was relied on by the learned Counsel appearing on behalf of the first defendant, is more in his favour, on principle.
32. For ready reference, the relevant portion at Paragraph No. 10 of the judgment of our High Court in In Re Baliarsimhulu Bahadur's case (supra) is extracted hereunder:
"The real question that falls for determination is whether, in view of the fact that Respondents 1 to 5 have been made parties to the appeal, they are entitled to object to the decree being passed in terms of the compromise entered into between the appellant and the first respondent, and claim that the appeal be decided on its merits. It was contended by the learned advocate for Respondents 2 to 5 that the point arising for decision in this application is concluded by a Full Bench ruling of the Madras High Court in Veeraraghava Reddi v. Subba Reddi, ILR 43 Mad 37 : AIR 1920 Mad. 391. The above decision does lay down that an alienee pendente lite who has been added as a party to the litigation, is entitled to object to a decree being passed in terms of a compromise arrived at between his alienor and the opposite party; and that such a compromise, although it may be binding on the alienor, cannot affect the rights of the alienee to claim a decision on the merits."
33. For ready reference, the relevant portion at Paragraph No. 6 of the judgment of the Apex Court in Khemchand Shankar Choudhari's case (supra) is extracted hereunder:
"Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject-matter of a suit from any of the parties to the suit will be bound insofar as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Code of Civil Procedure clearly recognizes the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the Appellate Court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an Official Receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an Official Receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the Court to be impleaded as parties they cannot be turned out.
................."
34. However, from a perusal of the judgment of the Apex Court in Bibi Zubaida Khatoon's case (supra), relied on by the learned Counsel appearing on behalf of the first defendant, it could be seen that their Lordships relied on the judgment of the Apex Court in Sarvinder Singh v. Dilip Singh, .
35. The facts in the said case, in brief, which are necessary are extracted, are as under:
The petitioner therein made two applications under Order 1 Rule 10 and Order 22 Rule 10 of the Code of Civil Procedure for her impleadment as a co-plaintiff in one suit and defendant in the other suit where two cross-suits were filed i.e., one for redemption of mortgage and the other for specific performance of an agreement of sale and also filed the third application under Order 6 Rule 17 of the Code of Civil Procedure seeking for amendment of the pleadings consequent to her proposed joinder as a party in the said two suits. The contention of the petitioner therein is that during the pendency of the said two suits, she had purchased the suit schedule properly in the year 1996 from the original plaintiff and has, thus, acquired the right of redemption of the mortgaged suit property and in the cross-suit filed seeking for specific performance of an agreement of sale based on the same acquisition of title during the pendency of the suit, she sought permission to implead as defendant.
36. The said applications filed by the petitioner therein seeking for her impleadment as co-plaintiff to one suit and defendant to the other suit were dismissed by the Trial Court.
37. In that context, it was urged that even though the joinder was a transferee pendente lite within the meaning of Section 52 of the Transfer of Property Act, an opportunity should be afforded to her to prosecute the suit for redemption of mortgage and the counter-suit for specific performance of the contract, her joinder in the two suits as party and prayer to bring subsequent events on record by the proposes amendment to the pleadings ought to have been allowed by the Trial Court.
38. At Paragraph 10 of the judgment in Bibi Zubaida Khatoon's case (supra), it was specifically observed by the Apex Court as under:
"The decisions cited and relied on behalf of the appellant turned on the facts of each of those cases. They are distinguishable. There is no absolute rule that the transferee pendente lite without leave of the Court should in all cases be allowed to join and contest the pending suits. The decision relied on behalf of the contesting respondents of this Court in the case of Sarvinder Singh (supra), fully supports them in their contentions. After quoting Section 52 of the Transfer of Property Act, the relevant observations are thus: (*SCC pp. 54142, Para 6).
"6. Section 52 of the Transfer of Property Act envisages that:
'During the pendency in any Court having authority within the limits of India....... of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.' It would therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the Court. Admittedly, the authority or order of the Court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit."
39. Further, at Paragraph 9 of the said judgment, it was observed as under:
"It is not disputed that the present petitioner purchased the property during pendency of the suit and without seeking leave of the Court as required by Section 52 of the Transfer of Property Act. The petitioner being a transferee pendente lite without leave of the Court cannot, as of right, seek impleadment as a party in the suits which are long pending since 1983. It is true that when the application for joinder based on transfer pendente lite is made, the transferee should ordinarily be joined as a party to enable him to protect his interest. But, in the instant case, the Trial Court has assigned cogent reasons for rejecting such joinder stating that the suit is long pending since 1983 and prima facie the action of the alienation does not appear to be bona fide. The Trial Court saw an attempt on the part of the petitioner to complicate and delay the pending suits."
40. From the above observations, two things are clear; firstly the transferee pendente lite had no absolute right to come on record, secondly the leave of the Court is essential in such cases and thirdly the discretionary jurisdiction of the Court would depend upon the facts and circumstances of each case.
41. It is further made clear that when an application for joinder based on transfer pendents life is made, the transferee pendents life, should ordinarily be joined as a party to enable him to protect his interest.
42. But, however, from a further reading of Paragraph No. 9 of the said judgment, it could be seen that the Trial Court had assigned the reasons for rejecting such applications filed for joinder of the party on the ground that the suits were long pending since 1983 and prima facie the action of the alienation does not appear to be bona fide. That ground for rejection of the implead applications assigned by the Trial Court was accepted by the Apex Court. Nevertheless the general principle, as observed by their Lordships, in the said judgment, is to the effect that it is always desirable to implead the party in spite of the transferee pendents life was made.
43. Therefore, I am of the considered view that the said judgment is not in deviation to the views expressed by me in the foregoing paragraphs. If all the judgments, cited above, are read together, the same would emerge as stated supra.
44. In fact, the facts in the said case are similar and arose under Section 52 of the Transfer of Property Act. In the said case, an application had been made under Order 22 Rule 10 C.P.C., but not under Order 1 Rule 10 C.P.C. In my view, where an application was filed by the purchaser pendente lite, whether under Order 1 Rule 10 C.P.C. or under Order 22 Rule 10 C.P.C., it does not really make much difference. Perhaps, an application under Order 22 Rule 10 C.P.C. would be more appropriate. As already submitted by the learned Counsel appearing for D.1, the scope of Order 1 Rule 10 C.P.C. is more wider and applies to different contingencies whereas Order 22 Rule 10 C.P.C. is applicable in a particular contingency. In other words, the application under Order 22 Rule 10 C.P.C. applies to other cases mentioned in Order 22 Rules 1 to 9 C.P.C.
45. For ready reference, Rule 10 of Order 22 C.P.C. is extracted hereunder:
"10. Procedure in case of assignment before final order in suit:--(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of Sub-rule (1)."
46. From the above, it is clear that when there is devolution of an interest on any person, such person may make an application to implead himself to protect his substantive interest, whether or not hit by the provisions of Section 52 of the Transfer of Property Act. The basic principle is that any person, who wants to come on record in order to protect his interest, in normal course, should be permitted to do so by coming on record. Whether the transaction of such person and the creation or devolution of any interest by any party to the suit is hit by the provisions of Section 52 of the Transfer of Property Act or not, is altogether a different question and that question shall have to be decided by the Court after giving an opportunity of being heard to such of those parties who claim to have substantive interest. Merely on the ground, that too a prima facie ground, that the devolution of interest by way of any kind is hit by the provisions of Section 52 of the Transfer of Property Act, the same cannot be rejected at the threshold. Only upon giving an opportunity of being heard, such a conclusion can be arrived at and that is possible only after permitting such persons to come on record, may be by way of making an application under Order 1 Rule 10 C.P.C. or Order 22, Rule 10 C.P.C. Therefore, the essentiality is those persons first be permitted to be added as parties and then the question as to whether the genesis of right of such person is hit by the provisions of Section 52 of the Transfer of Property Act or not has to be decided.
47. In Saila Bala's case (supra), it was held by the Apex Court as under:
"In our opinion, the application filed by the appellant falls within Section 146 of the Civil Procedure Code, and she is entitled to be brought on record under that section. Section 146 provides that save as otherwise provided by the Code, any proceeding which can be taken by a person may also be taken by any person claiming under him. It has been held in Sitharamaswami v. Lakshmi Narasimha, ILR 41 Madras 510 = AIR 1919 Mad 755(2) (C), that an appeal is a proceeding for the purpose of this section, and that further the expression "claiming under" is wide enough to include cases of devolution and assignment mentioned in Order 22 Rule 10. This decision was quoted with approval by this Court in Jugalkishore Saraf v. Raw Cotton Co. Ltd., (D), wherein it was held that a transferee of a debt on which a suit was pending was entitled to execute the decree which was subsequently passed therein, under Section 146 of the Civil Procedure Code as a person claiming under the decree-holder, even though an application for execution by him would not He under Order 21 Rule 16, and it was further observed that the words "save as otherwise provided" only bared proceedings, which would be obnoxious to some provision of the Code.
It would follow from the above authorities that whoever is entitled to be but has not been 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, and that accordingly the appellant as assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal against the judgment of P.B. Mukharji, J.
It is next contended that Section 146 authorises only the initiation of any proceeding, and that though it would have been competent to the appellant to have preferred an appeal against the judgment of P.B. Mukharji, J, she not having done so was not entitled to be brought on record as an appellant to continue the appeal preferred by the second respondent. We are not disposed to construe Section 146 narrowly in the manner contended for by Counsel for the first respondent. That section was introduced for the first time in the Civil Procedure Code 1908, with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. It has been held by a Full Bench of the Madras High Court in Muthaiah Chettiar v. Govinddoss Krishnadoss, ILR 44 Mad 919 = AIR 1921 Mad 599 (E), that the assignee of a part of a decree is entitled to continue an execution application filed by the transferor-decree holder. Vide also Moidin Kutty v. Doraiswami, (F). The right to file an appeal must therefore be held to carry with it the right to continue an appeal which has been filed by the person under whom the applicant claims, and the petition of the appellant to be brought on record as an appellant in Appeal No. 152 of 1955 must be held to be maintainable under Section 146".
48. Though the above observations do occur in a situation where an application was made under Order 22 Rule 10 read with Section 146 of C.P.C., there is no specific reference as to what should happen when an application made by a person claiming an interest, which is hit by the provisions of Section 52 of the Transfer of Property Act. The broad principle that is laid down in the above judgment is that any person who claims certain rights through somebody can prefer an appeal.
49. The important observations in the decision of the Apex Court in Saila Bala's case (supra) covering the present controversy are contained in Paragraph 9 of the said decision, which read thus:
"As a purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that she would be given an opportunity to protect her rights".
50. A Division Bench of this Court in C. Subbarayudu v. E. Brahmanandan, (DB), also held on the same lines following the judgment in Saila Bala's case (supra). Further, same is the view taken by the Supreme Court in a recent judgment in Raj Kumar v. Sardari Lal and Ors., 2004 (1) Decisions Today (SC) 81, following the decisions in Saila Bala's case (supra) and Jugalkishore v. Raw Cotton Co., AIR 1955 SC 376.
51. From the above decision Saila Bala's case (supra), it is clear that a person whose transaction was hit by the provisions of Section 52 of the Transfer of Property Act apparently is entitled to have the opportunity of being heard after being brought on record.
52. Coming to facts of the case on hand, it is not in dispute that Defendant No. 1 has taken a specific stand that the agreement of sale i.e., Ex.A.1 was a forged one and since the said plea was not accepted by the Trial Court the present appeal has been preferred. Same is the contention in the appeal also.
53. Therefore, in view of the above position, I hold that the petitioners in implead party application (A.S.M.P. No. 12019 of 2004) are entitled to be brought on record. Accordingly, A.S.M.P. No. 12019 of 2004 is allowed.
54. In Re Question No. 2: Coming to the second question, i.e., whether the application filed by D.1 under Order 23 Rule 1 C.P.C. can be allowed or not, it is to be noted that the plaint averment is, specifically, to the effect that D.1 along with his deceased son entered into the agreement of Sale Ex.A.1 and after the death of his son Defendants 2 to 4 were added as parties in the capacity of legal representatives of the deceased son and the relief sought was against all the four defendants, for specific purpose.
55. It is further to be seen that Clause (1) of the decree under appeal (dated 12-2-2001 in O.S. No. 132 of 1995 on the file of Senior Civil Judge, Yellamanchili) was to the effect that--
"D.1 to D.4 do execute a registered sale deed in favour of the plaintiff in terms of the sale agreement dated 16-8-1993 in respect of the suit schedule property within three months from the date of this judgment".
56. The decree under appeal directs all the defendants (D.1 to D.4) to execute a registered sale deed in favour of the plaintiff in terms of the sale agreement dated 16-8-1993 in respect of the suit schedule property within three months from the date of the judgment.
57. Therefore, it is not discernible as to how D.1 can withdraw the appeal binding the other appellants. Such withdrawal of appeal, if any, can be done only by all the defendants.
58. Sri P. Sri Raghuram, learned Counsel appearing for D.1 to D.4 contended that Kundrapu Laxmi (D2) pleaded ignorance of the transaction entered into by D.1 and her (D.2's) late husband with the plaintiff. However, there is an averment in the written statement regarding the said collusion and knocking away of consideration by the first defendant, which was paid to him previously. These aspects have to be gone into in the main appeal. But, the fact remains that D.2 to D.4, as contended by Sri P. Sri Raghuram, learned Counsel, are very much parties to the suit as well as the present appeal. They also did contest the suit along with D.1.
59. However, another important fact which has been brought to the notice of this Court is that subsequently, D.3 preferred a separate appeal challenging the very-same decree and judgment of the Court below. Therefore, even otherwise, it is not proper for D.1 to withdraw the entire appeal, which may result in causing some prejudice to the interest of the other defendants in the suit.
60. Sri P. Sri Raghuram, learned Counsel, also relied on the decision in Shribalabh v. Gulab, AIR 1928 Nagpur 106. In the said judgment, while dealing with the power of the Court under Section 151 C.P.C., it was held:
"........In this case there is no way of preventing that abuse but by ordering that the three rent suits shall be restored to the file and treated as pending cases, instituted on the dates on which the plaints were originally presented, I know of no provision of the law authorizing such an order, and there may be many that directly forbid it, but the power to pass it (mentioned in Section 151 C.P.C., as existing of itself but not conferred by that section) can be used only in these circumstances; unless it is the power to break rules, it is nothing at all, and rules that do not exist cannot be broken. The order stated is accordingly passed.
......... ......."
61. In any event, since the decree and judgment in the case on hand are binding on the parties, D.1 alone cannot be permitted to withdraw the appeal. Furthermore, when it is the specific contention of D.3 who preferred an independent appeal, and also when it is the specific contention of the implead party petitioners that there was fraud and collusion between D.1 and the plaintiff and further that even prior to the sale deed executed in favour of the plaintiff D.1, though pendente lite created an interest, of course is hit by the provisions of Section 52 of the Transfer of Property Act, the appeal cannot be permitted to be withdrawn.
62. To put it in other words, if a plaintiff, after instituting the suit for specific performance, withdraws the suit for any reason, such transaction which is otherwise hit by the provisions of Section 52 of the Transfer of Property Act would become legal and operative.
63. For the above reasons, the application (A.S.M.P. No. 15768 of 2004), seeking permission to withdraw the appeal, is liable to be dismissed.
64. In the result, A.S.M.P. No. 12019 of 2004 is allowed and A.S.M.P. No. 15768 of 2004 is dismissed.