Andhra HC (Pre-Telangana)
Kesari Goutham Reddy vs Velpula John Victor Macaulay And Anr. on 11 June, 2007
Equivalent citations: 2007(5)ALD656, 2007(6)ALT20
ORDER P.S. Narayana, J.
1. Heard Sri Prabhakar Peri, the learned Counsel representing the revision petitioner-proposed party and Sri S. Srinivas Reddy, the learned Counsel representing the first respondent.
2. The CRP is filed as against the order, dated 28.4.2006, made in I.A. No. 221 of 2004 in A.S. No. 30 of 2001 on the file of IV Additional District Judge, Nellore. The application was filed under Order 1 Rule 10 of the Civil Procedure Code (hereinafter referred to as 'the Code' for the purpose of convenience) for impleading the petitioner-proposed party as one of the respondents in A.S. No. 30 of 2001. The learned Judge recorded certain reasons and, ultimately, dismissed the said application. Aggrieved by the same, the present CRP is preferred.
3. This Court, on 22.6.2006, granted stay of pronouncement of judgment in the said appeal and adjourned the matter to 13.7.2006 and the interim order was extended and the Counsel for petitioner is permitted to take out notice and file proof of service. Thus, the matter is coming up for admission and at the request of both the Counsel on record, the CRP is being disposed of finally.
4. Sri Prabhakar Peri, the learned Counsel representing the petitioner-proposed party would submit that it is an unfortunate case where the proposed party purchased the property under a registered sale deed dated 5.6.1998. The Counsel also would submit that the respondent in the appeal who had been successful in the suit is not interested in contesting the appeal and, as a purchaser pendente lite, the petitioner with a view to safeguard his interest filed the present application. The learned Counsel also would submit that though the petitioner filed O.S. No. 807 of 2002 on the file of III Additional Junior Civil Judge, Nellore, the pendency of the said suit not to come in the way, in deciding this application, since any adverse judgment which may be made in this appeal may affect the petitioner-proposed party in any other pending suit as a whole. The Counsel placed a strong reliance on Raj Kumar v. Sardari Lal and Ors. and Amit Kumar Shaw and Anr. v. Farida Khatoon and Anr. .
5. Per contra, Sri Srinivas Reddy, the learned Counsel representing the first respondent had taken this Court through the reasons which had been recorded. The Counsel also would submit that the property, which is being claimed by the petitioner, and the subject-matter of O.S. No. 108 of 1992, appear to be different plots. The learned Counsel also would submit that already a suit O.S. No. 807 of 2002 on the file of the III Additional Junior Civil Judge, Nellore had been instituted and, hence, there is no need to allow the said application permitting the petitioner-proposed party to come on record in A.S. No. 30 of 2001.
6. Heard both the Counsel.
7. It is the case of the revision petitioner that he purchased an extent of 100 ankanams of vacant site bearing plot No. 3 comprised in S.C. No. 347 of 2001 of Kondayapalem, Nellore town within the limits of Nellore Municipality by virtue of a registered sale deed dated 5.6.1998 for a consideration of Rs. 1,08,000/- from the respondent in A.S. No. 30 of 2001 and, thus, he has been in possession and enjoyment of the same with absolute rights. It is also stated that on 31.7.2002, there was an attempt to encroach upon his site and since he was unable to resist the highhanded acts of the first respondent, who is the appellant in A.S. No. 30 of 7001, he had filed O.S. No. 807 of 2002 on the file of III Additional Junior Civil Judge, Nellore against him for perpetual injunction and obtained interim injunction orders in LA. No. 864 of 2002 in the said suit. It is also stated that recently it came to his knowledge that there is collusion between the appellant-respondent in A.S. No. 30 of 2001 and they are trying to create certain documents to defeat his rights relating to plot No. 3.
8. The appellant in the appeal, the first respondent in the application, resisted the same denying the allegations. It is stated that the first respondent is the absolute owner of 100 ankanams in plot No. 2 the suit schedule property in O.S. No. 108 of 1992 and it was purchased by him through a registered sale deed dated 16.7.1990 from M. Sugunamma and after purchase of the property on physical verification of the property at the spot, there appears to be some changes as to the boundaries. As such, a rectification deed, dated 10.2.1992, was executed by Ch. Raja Babu, G.P.A. of M. Sugunamma. It is also stated that the first respondent started construction of the house in his site and he began to construct the compound wall. At this stage, the second respondent tried to encroach upon the site belonging to first respondent, as such the first respondent i.e., the appellant in A.S. No. 30 of 2001 was constrained to file O.S. No. 108 of 1992 on the file of III Additional Junior Civil Judge, Nellore and after trial, the suit was dismissed. It is also stated that the proposed party has got knowledge of the filing of O.S. No. 108 of 1992 and he was supporting the defendant in the suit, the respondent in A.S. No. 30 of 2001. The alleged sale deed is only sham and nominal document and several other factual details also had been narrated.
9. The learned Judge recorded reasons at Paras 6 and 7 and, especially, in the light of the pendency of O.S. No. 807 of 2002 relating to the same subject-matter and also on the ground that there appears to be some doubt relating to the subject-matter of these litigations, the application was dismissed. It is needless to say that in the light of the respective stands taken by the parties, whether the subject-matter of these suits overlap, whether the identity is one of the same and whether these are different plots, these aspects may have to be further gone into at the appropriate stage. The main contention of the revision petitioner is that his vendor, the defendant, who was successful in the suit, is not interested in contesting the appeal and there appears to be some collusion between these two parties to defeat his rights. No doubt, the appellant in the appeal is taking a stand that the document in question is a sham and nominal document. This Court is not inclined to express any opinion relating to these details. Be that as it may, as a purchaser pendente lite, the proposed party filed the application to come on record to safeguard his interest. It may be that yet another suit already might have been instituted by him as against the appellant in this appeal praying for the relief of perpetual injunction.
10. In the decision Raj Kumar's case (supra), the Apex Court observed thus:
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 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 proceeding 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.
A decree passed against the defendant is available for execution against the transferee or assignee of the defendant judgment-debtor and it does not make any difference whether such transfer or assignment has taken place after the passing of the decree or before the passing of the decree without notice or leave of the Court.
The law laid down by a four-Judge Bench of this Court in Saila Bala Dassi v. Nirmala Simdari 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 by 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 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 the decision Amit Kumar's case (supra), the Apex Court observed thus:
The object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under this rule, a person may be added as a party to a suit in the following two cases:
1. When he ought to have been joined as plaintiff or defendant, and is not joined so, or
2. When, without his presence, the questions in the suit cannot be completely decided.
The power of a Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will necessarily include an enforceable legal right. The application under Order 22 Rule 10 can be made to the appellate Court even though the devolution of interest occurred when the case was pending in the trial Court. In the instant cases, the suit was decreed in favour of Fakir Mohammad by judgment and decree dated 3.11.1989. The suit was contested by two sets of defendants, one set of defendants was Birendra Nath Dey and Kalyani Dey and the other set of defendants was Jagat Mohan Das alone. The appeals were preferred by the parties. Both the appeals were heard and by a common judgment and order dated 25.6.1992, the said appeals were allowed and the judgment and decree passed by the Munsif was set aside. By a deed of assignment dated 15.12.1995, the said Birendra Nath Dey assigned his lease hold right in respect of 132-A, Circular Garden Reach Road, presently known as 132-A, Karl Marx Sarani, Kolkata in favour of the appellants. By a deed of sale executed on 15.12.1995, duly registered with the Additional Registrar of Assurances, Calcutta, Kalyani Dey sold the property being No. 132-B of the above address to the other appellant. The second appeals filed by the parties were pending on the file of the High Court at Calcutta. The appellants had no knowledge of the second appeals. Thereafter on verification, the appellants came to know of the pendency of the appeals which necessitated them to file the applications for substitution in the second appeals. In the meanwhile, the appellants filed the applications before the municipal authorities for the mutation of their names in respect of the property on 24.12.2002 and the municipal authority informed the appellants that they were not in a position to mutate the names of the appellants of the property in question because of the pendency of the two second appeals before the High Court at Calcutta. Thereafter the appellants engaged an advocate to find out whether any such appeals have been filed by the parties. The advocate so engaged informed the appellants that two appeals being SAs Nos. 631 and 632 of 1993 were filed by Fakir Mohammad, Farida Khatoon and Ors. respondents herein. It was also informed that the said appeals were admitted by the High Court but the impugned judgment and other order was neither prayed for stay nor stayed. Therefore, it was also submitted by the appellants that since the appellants have become the absolute owners of the property, their interest will be highly prejudiced and they will be vitally affected, if any order is passed by High Court without hearing the appellants in the matter. Therefore, they prayed that the appellants are to be substituted in place and stead of the present respondents, since they have no existing and subsisting right, title or interest in the property.
Under Order 22 Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. The Court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit.
In this connection, the provisions of Section 52 of the Transfer of Property Act, 1882 which has been extracted above may be noted.
An alienee pendente lite is bound by the final decree that may be passed in the suit. Such an alienee can be brought on record both under this rule as also under Order 1 Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed.
12. In the light of Section 146 of the Code read along with Order 1 Rule 10 and also Order 22 Rule 10 of the Code, this Court is of the considered view that in a matter of this nature, where a purchaser pendente lite intends to come on record to safeguard his interest in a pending litigation, it would not be just and proper to dismiss such application.
13. In the light of the same, the impugned order is hereby set aside. Accordingly, the CRP is hereby allowed. No order as to costs.