Andhra HC (Pre-Telangana)
Mandapalu Ramaiah vs Contdrathi Ramanarayana And 3 Others on 4 July, 2013
Equivalent citations: AIRONLINE 2013 AP 143, (2013) 6 ANDHLD 108, (2014) 1 CIVILCOURTC 752, (2014) 1 ICC 290
Author: Nooty Ramamohana Rao
Bench: Nooty Ramamohana Rao
THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CIVIL REVISION PETITION NOs. 794 OF 2012 and batch dated:04-07-2013 Mandapalu Ramaiah..Petitioner Contdrathi Ramanarayana and 3 others..Respondents Counsel for the Petitioner: Sri T.Lakshminarayana Counsel for the Respondents: Sri T.S.Anand <Gist: >Head Note: ?CITATIONS: 1 2004 AIR SCW 470 : (2004) 2 SCC 601 2 (1983) 1 SCC 18 3 (2001) 6 SCC 534 CRP No.794 of 2012 & 3288 of 2012 O R D E R:
CRP No. 794 of 2012 has been preferred by the plaintiff in the suit challenging the correctness of the orders passed in IA No. 1677 of 2010 by the learned Principal District Judge, Warangal. IA No. 1677 of 2010 has been filed under Section 5 of the Limitation Act seeking condonation of delay of 840 days in filing a petition under Order IX Rule 13 CPC (which is IA Sr No. 6274 of 2010). The respondents 2, 3 and 4 in this revision filed those two applications. The 1st respondent herein was the sole defendant in the suit OS No. 21 of 2004.
Suit OS No. 21 of 2004 was instituted on 2.9.2004 against the 1st respondent-defendant herein for specific performance of the agreement of sale dated 22.4.2003 concerning land of an extent of Act.2.36 gts. Since the defendant has failed to contest the suit, he was initially set ex parte on 19.1.2005. The defendant moved IA No. 110 of 2005 under Order IX Rule 7 CPC to set aside the said ex parte order and it was allowed subject to the defendant depositing a sum of Rs.6,50,000/-. Since the defendant had failed to deposit the said sum of money, the IA No. 110 of 2005 was dismissed. That order was carried in revision to this court by the defendant by preferring CRP No. 858 of 2005. That revision was dismissed by this court on 12.7.2005. Then the defendant carried the matter to Supreme Court by preferring SLP No. 19359 of 2005 and the Supreme Court dismissed the said SLP on 22.10.2007. Thereafter, the suit OS No. 21 of 2004 was decreed ex parte on 3.7.2008. The 1st respondent/defendant has not preferred any appeal against the said decree.
IA Sr No. 6274 of 2010 has been moved on 12.11.2010 for setting aside the said ex parte decree passed on 3.7.2008. The case of the respondents 2, 3, 4 herein who moved the IA Sr No. 6274 of 2010 was that the defendant in the suit being the original owner executed an Agreement of Sale cum General Power of Attorney on 13.9.2004 in favour of Sarvasri Ajmeera Prahlad, Yada Venugopal and Pingle Sampath Reddy. These GPA holders in turn executed a regular Sale Deed on 15.9.2004 in favour of Ravula Dayanand and Gunda Rajeswara Rao. These two subsequent purchasers together with adjacent land owners developed land of a total extent of Ac.9.31 gts inclusive of suit land of Ac.2.36 gts and respondents 2 and 3 herein sold sites, to 17 persons under several registered documents, forming part of the layout. They sold plot No. 66 to Gujja Sampath Reddy who is the 3rd petitioner in the IA. It is the case of the respondent No.2 herein that when he was making an attempt to construct a compound wall around a plot of land, the petitioner - plaintiff herein arrived at the spot on 8.11.2010 and obstructed the construction of the compound wall setting out that he entered into an agreement of sale with the original defendant in the suit on 22.4.2003 and that he filed suit OS No. 21 of 2004 for specific performance of the same and obtained a decree of the said suit on 3.7.2008. That is how the respondent No. 2 herein came to know of the collusive decree dated 3.7.2008. Hence, he along with two others filed IA Sr No. 6274 of 2010 for setting aside the decree dated 3.7.2008. Since there was also some delay in moving the said IA, IA No. 1677 of 2010 has been moved under Section 5 of the Limitation Act though the limitation should be computed from the date of knowledge viz., 8.7.2010 and when so computed there was no delay in fact in moving the IA Sr No. 6274 of 2010.
The petitioner herein filed a counter affidavit contending that respondents 3 and 4 herein who are petitioners 2 and 3 in the IA were put on notice by him on 28.12.2004 bringing out the agreement of sale dated 22.4.2003 and that the plaintiff-petitioner herein has filed the suit in question and that the court has passed a status quo order in IA No. 2861 of 2004 in the suit and in spite of the same, and when such an order of the court is subsisting, they purchased the land in question. In spite of the same, they have not moved in the matter to contest the suit.
The learned District Judge first considered as to whether a petition under Order IX Rule 13 of CPC filed by third parties is maintainable or not? Based upon the judgment rendered by the Supreme Court in Raj Kumar v. Sardari Lal and others1 held that third parties are entitled to make an application for setting aside the decree passed against the transferor. Thereafter, the learned Judge considered the question as to the sufficiency of cause for condoning the delay. Learned Judge apart from finding sufficient reasons for condonation of delay has also come to a conclusion that there is no real necessity to seek condonation of delay inasmuch as IA Sr No. 6274 of 2010 has been filed on 12.11.2010 within 30 days time from the date of the knowledge about the decree in the suit.
CRP No. 3288 of 2012 is filed challenging the correctness of the orders passed by the learned Principal District Judge, Warangal, on 5.7.2012 in IA No. 573 of 2012 in suit OS No. 21 of 2004. The said IA No. 573 of 2012 was moved seeking stay of execution of the decree dated 3.7.2008 in OS No. 21 of 2004 pending disposal of petition filed under Order IX Rule 13 CPC (i.e., IA Sr No. 6274 of 2010). IA No. 573 of 2012 has been dismissed in view of the orders passed on the same day viz., 5.7.2012 in EA No. 190 of 2010 in EP No. 268 of 2008 arising out of OS No. 21 of 2004. EA No. 190 of 2010 was filed by the plaintiff - decree holder under Order XXI Rules 95 and 97 of CPC for ordering the Field Assistant of the court to deliver the physical possession of the suit schedule property to him under a cover of panchanama. Thus, both these CRPs are inter related and hence heard together.
Heard Sri M.V.S.Suresh Kumar, learned counsel on behalf of the learned counsel for the petitioners in CRP No. 794 of 2012 and Sri T.S.Anand, learned counsel for the respondents 2, 3 and 4 in CRP No. 794 of 2012 and on behalf of the petitioners in CRP No. 794 of 2012 and on behalf of the petitioners in CRP No. 3288 of 2012.
It is contended by Sri M.V.S.Suresh Kumar, learned counsel that the plaintiff - petitioner in CRP No. 794 of 2012 entered into an Agreement of Sale on 22.4.2003 with the defendant in the suit for a total sale consideration of Rs. 22,62,000/- (at the rate of Rs.7,80,000/- per acre) and that substantial sum of Rs.6,50,000/- was paid to the defendant in the suit as advance sale consideration and when he was procrastinating the transaction, OS No. 21 of 2004 came to be instituted. Whereas it is the case of the respondents that the defendant in the suit, after alleged cancellation of the agreement of sale entered into with the plaintiff, entered into an Agreement of Sale cum General Power of Attorney agreeing to sell the land for a consideration of RS.8,70,000/- and that those agreement of sale holders in turn sold the immoveable property in favour of respondents 2 and 3 on 15.9.2004 during the pendency of the civil suit. The original defendant has failed to comply with the orders of the court to deposit Rs.6,50,000/- into court and consequently IA No. 110 of 2005 moved by him for setting him ex parte was dismissed. He pursued the matter right up to Supreme Court and the Supreme Court dismissed the SLP preferred by him on 22.10.2007 and thereafter the suit came to be decreed on 3.7.2008. The respondents 2, 3, 4 herein who are third parties to the suit are now seeking to espouse in disguise the cause of the 1st defendant in the suit by seeking the decree dated 3.7.2008 to be set aside. Hence, it is contended that the original defendant in the suit in collusion with the petitioners in the IA, is seeking to deny the petitioner/plaintiff the fruits of the decree in his favour. It was principally contended by Sri M.V.S.Suresh Kumar, learned counsel, that respondents 2,3,4 herein have not filed any application under Order XXII Rule 10 of CPC, to bring them on record and hence the question of setting aside a decree at the hands of a third party would not arise. Learned counsel Sri M.V.S.Suresh Kumar would further contend that the decree which has been passed lawfully cannot be set aside lightly, without the court considering it really necessary to grant leave for the respondents 2, 3, 4 herein to contest the civil suit.
Per contra, Sri T.S.Anand, learned counsel, would contend that moving an application under Order XXII Rule 10 is not a condition precedent for a decree in question to be set aside and an application under Order IX Rule 13 CPC is maintainable independently and that was the view of the Supreme Court in Raj Kumar's case (supra 1).
In view of the rival submissions, the most crucial question to be decided is whether an application under Order XXII Rule 10 CPC is needed to be filed simultaneously along with an application under Order IX Rule 13 or not?
Order XXII of the Code of Civil Procedure dealt with the effect of death, marriage, insolvency of parties, etcetera, on the proceedings which are pending. Rule 1 thereof made it clear that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives and Rules 2, 3, 4 deals with the aspects relating to the death of either the plaintiff or defendant. Rule 5 dealt with the issue relating to determination of the question as to the legal representative of the dead person. Rule 6 declares that, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment. Rule 7 sets out that, suit shall not abate by marriage of a female party. The effect of insolvency of the plaintiff has been dealt with by Rule 8 and Rule 9 dealt with the effect of abatement or dismissal of a suit, thereafter no fresh suit shall be brought on the same cause of action. Rule 10 laid down the procedure to be followed in case of assignment of interest. Sub-rule (1) thereof has some significance for our inquiry and it reads as under:
"R.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."
This rule is based upon the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the suit has devolved upon another during the pendency of the suit but that such a suit may be continued with the leave of the court against the person upon whom such interest has devolved.
In Khem Chand Shankar Choudhari v. Vishnu Hari Patil2, the Supreme Court has held that a transferee pendent elite of an interest in immoveable property which is the subject matter of a suit is a representative in the interest of the party from whom he has acquired that interest and hence has a right to be impleaded as a party to the proceedings. The Supreme Court has also added that, "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.
The question as to the requirement of filing an application under Order XXII Rule 10 seeking leave of the Court by the person upon whom the interest has devolved during the pendency of the suit fell for consideration in Dhurandhar Prasad Singh Vs. Jaiprakash University and others3. In paragraphs (7) and (26), the principle has been set out as under:
7. Under Rule 10, Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against persons upon whom such interest has devolved and this entitles, the person who has acquired an interest in the subject matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the Court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by their Lordships of the Judicial Committee in Moti Lal v. Karab-ud-Din [1898] 25 Cal.179, he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary.
It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord Kingsdown of the Judicial Committee said in Prannath v. Rookea Begum [1851-59] 7 M.I.A. 323, a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings.
26. Plain language of Rule 10 referred to above does not suggest that leave can be sought by that person alone upon whom the interest has devolved. It simply says that the suit may be continued by the person upon whom such an interest has devolved and this applies in a case where the interest of plaintiff has devolved. Likewise, in a case where interest of defendant has devolved, the suit may be continued against such a person upon whom interest has devolved, but in either eventuality, for continuance of the suit against the persons upon whom the interest has devolved during the pendency of the suit, leave of the court has to be obtained. If it is laid down that leave can be obtained by that person alone upon whom interest of party to the suit has devolved during its pendency, then there may be preposterous results as such a party might not be knowing about the litigation and consequently not feasible for him to apply for leave and if a duty is cast upon him then in such an eventuality he would be bound by the decree even in cases of failure to apply for leave. As a rule of prudence, initial duty lies upon the plaintiff to apply for leave in case the factum of devolution was within his knowledge or with due diligence could have been known by him. The person upon whom the interest has devolved may also apply for such a leave so that his interest may be properly represented as the original party, if it ceased to have an interest in the subject matter of dispute by virtue of devolution of interest upon another person, may not take interest therein, in ordinary course, which is but natural, or by colluding with the other side. If the submission of Shri Mishra is accepted, a party upon whom interest has devolved, upon his failure to apply for leave, would be deprived from challenging correctness of the decree by filing a properly constituted suit on the ground that the original party having lost interest in the subject of dispute, did not properly prosecute or defend the litigation or, in doing so, colluded with the adversary. Any other party, in our view, may also seek leave as, for example, where plaintiff filed a suit for partition and during its pendency he gifted away his undivided interest in the Mitakshara Coparcenary in favour of the contesting defendant, in that event the contesting defendant upon whom the interest of the original plaintiff as devolved has no cause of action to prosecute the suit, but if there is any other co-sharer who is supporting the plaintiff, may have a cause of action to continue with the suit by getting himself transposed to the category of plaintiff as it is well settled that in a partition suit every defendant is plaintiff, provided he has cause of action for seeking partition. Thus, we do not find any substance in this submission of learned counsel appearing on behalf of the appellant and hold that prayer for leave can be made not only by the person upon whom interest has devolved, but also by the plaintiff or any other party or person interested.
(emphasis is mine) Once again, when a similar question has fallen for consideration, the Supreme Court in Rajkumar Vs Sardari Lal and others (supra 1) has laid down the principle in paragraphs (5) and (13) as under:
"5. The doctrine of lis pendens expressed in the maxim 'ut lite pendents nihil innovetur' (during a litigation nothing 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 pendent lite is treated in the eye of law as a representative-in- interest of the judgment-debtor and held bound by the decree passed against the judgment-debtor though neither the defendant has chosen to bring the transferee on record by apprising his opponent and the Court of the transfer made by him nor the transferee has chosen to come on record by taking recourse to Order 22 Rule 10 of the CPC. In case of an assignment creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 of the 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.
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13. The appellant cannot dispute that the decree though passed against the respondent Nos. 2 and 3 could be executed even against the respondent No. 4, he being a lis pendens transferee though not having been joined in the suit as a party. Such a person can prefer an appeal being a person aggrieved. Clearly, the person who is liable to be proceeded against in execution of the decree or can file an appeal against the decree, though not a party to the suit or decree, does have locus standi to move an application for setting aside an ex-parte decree passed against the person in whose shoes he has stepped in. In the expression employed in Rule 13 of Order 9 of the CPC that 'in any case in which a decree is passed ex-parte against a defendant, he may apply for an order to set it aside' the word 'he' cannot be construed with such rigidity and so restrictively as to exclude the person, who has stepped into the shoes of the defendant, from moving an application for setting aside the ex-parte decree especially in the presence of Section 146 he CPC."
In fact, Sri T.S. Anand, learned counsel for the petitioner has placed strong reliance upon this Judgment and contended that the application moved by the respondent under Order IX Rule 13 is maintainable.
It will be apt to remember that in Rajkumar's case (supra 1), the respondent No.4 therein, who purchased the suit property from the defendants who are respondents 2 and 3 therein during the pendency of a civil suit, in fact filed two applications on 30.05.1998, one under Order IX Rule 13 of the Code of Civil Procedure seeking setting aside of the decree and the other with a prayer under Order XXII Rule 10 for being brought on record. Therefore, there is need to reconcile the principles enunciated in Shankar Choudhari's case (supra 2), Rajkumar's case (supra 1) and Dhurandhar Prasad Singh's case (supra 3).
A party upon whom the interest in the immoveable property, which is the subject matter of a suit, has devolved all because of the purchase of the said property during pendency of the suit has every right to seek the leave of the court for prosecuting the case independently by him. He has the locus standi to move the matter. But, if he does not chose to do so by applying for the leave of the court, he will have to suffer for the default committed by him. The purport of Rule 10 of Order XXIII CPC is that it is not obligatory upon a party to seek leave. It is, therefore, by option, one exercises to prosecute the cause properly and safeguard his own interest. A party on whom such an interest in the immoveable property has devolved is also entitled to maintain an application under Order IX Rule 13 CPC seeking setting aside of the decree passed for the default of his predecessor-in-interest in the suit. But, however, he cannot maintain such an application without seeking leave of the court in accordance with Order XXII Rule 10 CPC. Imagine a situation where an application moved by a party under Order IX Rule 13 is allowed, but he does not follow it up by moving an application, to be brought on record in accordance with Rule 10 of Order XXII CPC, as moving any such application is purely voluntary act or optional and the court cannot insist upon or compel such an application to be moved. The court will be left with no meaningful steps to be taken in the pending proceedings thereafter. The decree passed earlier having been set aside and the original party continues to lack interest to contest the same, the court will be forced to repeat the same step again viz., passing an ex parte decree. No application therefore shall be maintained to secure such a result. Every application must be intended for furthering the cause of justice. The very philosophy behind providing an opportunity to a defaulting party enabling him to move an application under Rule 13 of Order IX CPC is only to provide once more an opportunity to contest the suit properly. It is not meant to leave the court high and dry. It is, therefore, imperative for the party before moving an application under Order IX Rule 13 to know as to the next step it has to undertake. Therefore, while moving an application under Order XXII Rule 10, simultaneously application under Order IX Rule 13 becomes maintainable. If no application under Order XXII Rule 10 is moved by a party, out of a choice left to him, he has to suffer the consequences of his default as enunciated in Shankar Chaudhari's case (supra 2) and Dhurandhar Prasad Singh's case (supra 3).
In Raj Kumar's case (supra 1), in paragraph (13) it was set out clearly that `the person who is liable to be proceeded against in execution of the decree or can file an appeal against the decree though not a party to the suit or decree, does have locus standi to move an application for setting aside an ex parte order passed against the person in whose shoes he has stepped in....."
This statement of the principle must be understood in the context of the application moved by the party concerned under Order XXII Rule 10 CPC in Raj Kumar's case (supra 1). It is apt to remember that a judgment of a court must be read as a whole and the observations from a judgment have to be construed in the light of the questions which fell for consideration before the court. The decision of the court takes it color from the questions involved in the case and hence it is important to ascertain the principle enunciated by the Supreme Court in Raj Kumar's case (supra 1) and it is not proper to pick out words or few sentences from the said judgment divorced from the context of the question under consideration by the said court. Hence, I am of the opinion that the IA Sr No. 6274 of 2010 which is moved by the respondents 2 to 4 herein without moving any application under Order XXII Rule 10 CPC is not maintainable. Only when leave is sought for by a party in terms of Order XXII Rule 10, such a party can also simultaneously maintain an application under Order IX Rule 13 CPC, but not otherwise. Therefore, I have no hesitation to allow CRP No. 794 of 2012 and set aside the order passed by the learned Principal District Judge, Warangal in IA No. 1677 of 2010, which is an ancillary application to IA Sr No. 6274 of 2010.
Since there is consensus that the result in CRP No. 794 of 2012 will follow in CRP No. 3288 of 2012, the said CRP No. 3288 of 2012 stands dismissed. No costs.
_________________________ NOOTY RAMAMOHANA RAO, J.
Date : 04.07.2013