Patna High Court
Baldeo Pandey vs Ram Prasad Raut And Ors. on 3 April, 1963
Equivalent citations: AIR1963PAT319, AIR 1963 PATNA 319
JUDGMENT U.N. Sinha, J.
1. These two civil revision applications have been filed by one Baldeo Pandey, who was a defendant in Title Suit No. 219 of 1948 instituted by Marachho Kuer, an opposite Party in these two cases. The Civil revisions arise out of two applications filed by two sets of persons under 0. 21, Rule 100 of the Code of Civil Procedure. An order has been passed by this Court in Civil Revision No. 12 of 1963 to the effect that these two applications will be heard together. Hence this judgment will govern both the cases.
2. The facts are as follows.
In 1948, Marachho Kuer had instituted Title Suit No. 219 of 1948 against Baldeo Pandey, disputing an alleged adoption of Baldeo Pandey by one Gopal Tiwary, husband of Marachho Kuer. According to Marachho Kuer, she was the legal heir of Gopal Tiwary and Baldeo Pandey was not his adopted son. The suit was decreed in 1955 and Title Appeal No. 91 of 1955 had been preferred by Baldeo Pandey, In the meantime, by two sale deeds dated the 7th October 1948 and the 26th October 1948, Marachho Kuer had transferred certain properties to the two sets of the applicants under Order 21, Rule 100 of the Code of Civil Procedure. It appears that during the pendency of Title Appeal No. 91 of 1955, the dispute between the parties to the appeal were referred to arbitration. An award was filed by the arbitrator and a decree was passed in terms of the award. The decree was executed by Balded Pandey and he obtained delivery of possession of certain-properties mentioned in Schedule B of the award, which, according to the award, Baldeo Pandey was entitled to. Then the two sets of purchasers under the two sale deeds mentioned above, filed their applications under Order 21, Rule 100, alleging that they had been wrongfully dispossessed of the properties purchased by them from Marachho Kuer. The application filed by the purchasers of the 7th of October was registered as Miscellaneous Case No. 165 of 1961 and the application filed by the purchasers of the 26th of October was registered as Mr. cellaneous Case No. 166 of 1961. The order under revision has disposed of both the miscellaneous cases, which have been allowed. Thus Baldeo Pandey has come up to this Court in these two civil revision applications.
3. The two points which have been urged by the learned counsel for the petitioner have been mentioned in paragraph 3 of the judgment of the learned Munsif, where he has stated that Baldeo Pandey's objections were that the miscellaneous cases were hit by the principles of Ms pendens and that the applicants under Order 21, Rule 100 were estopped from challenging the award decree as they were parties to the award. After stating the case of the respective parties, the learned Munsif framed two points for determination, which are;
"1. Are the applications maintainable?
2. Whether the applicants were in possession of the respective properties before D. P. If so, whether on their own account or not?"
It seems that substantially the points urged before the learned Munsif were that the sale deeds in favour of the two sets of the applicants were not genuine documents and were not supported by consideration. The conclusion of the learned Munsif was against Baldeo Pandey and the learned Munsif has hold that it was not possible to hold that the sale deeds were farzi transactions. On the question of possession, the learned Munsif has held that the applicants before him were in possession of the properties claimed by them in their own right. As the applicants had been dispossessed, the miscellaneous cases were allowed as stated above.
4. Learned counsel for the petitioner has reiterated the above two contentions by putting forward a case, firstly, that in view of Rule 102 of Order 21 of the Code ot Civil Procedure, the applicants were not entitled to a decision in their favour. It is urged that as the transfers in favour of the applicants had been made subsequent to the institution of the Title suit No. 219 of 1948, ending in a decree on award for possession of immovable property, the duplications in the Court below were hit by the law enunciated in Rule 102 of Order 21 of the Code of Civil Procedure. Secondly, it is urged that as the five purchasers-applicants were parties to the decree passed on award, or were at least parties to the award which resulted in the decree they were estopped from raising an objection that they had been dispossessed from any property covered by Schedule B of the award.
Having heard learned counsel for the parties, it ap-pears to me that neither of the points raised by the learned counsel for the petitioner can be sustained. As indicated above, the suit instituted by Marachho Kuer was merely a declaratory suit. Thereafter certain properties had been transferred by, Marachho Kuer to the applicants in these two cases. By a decree parsed on award in Title Appeal No. 91 of 1955, the scope of Title suit no. 219 of 1948 could not have been enlarged into a suit with respect to properties, so that the doctrine of Ms penaens can apply. The expression "in execution of a decree tor the possession of immovable property" in Rule 102 of Order 21, Code of Civil Procedure, must mean, in my opinion, to an execution of a decree for possession of immovable property by virtue of a suit involving those properties. If by virtue of the nature of the suit filed, properties are not involved, then it is difficult to hold that a decree which followed can bring into play Rule 102 of Order 21, of the Code of Civil Procedure. Obviously, Rule 102 was enacted as an exception to Rules 99 and 101 of Order 21, and a transferee who was affected by the Rule of us pendens could not be heard to object under Rule 100 of Order 21, complaining of dispossession.
In the present case, the suit instituted by Marachho Kuer was a suit which did not involve any property. A decree passed in "such a suit cannot affect the applicants in" these two cases who had purchased certain properties luring the pendency of that suit, unless it can be shown that they were actually parties to the final decree passed in the suit. The point taken by the learned counsel for the petitioner to the effect that the applicants in these cases must be deemed to be parties to the arbitration ana to the decree passed on award is of no substance. The learned Munsif has clearly stated in paragraph 10 of his judgment that the decree prepared in Title Appeal No. 91 of 1955 does not show that the applicants before him were in the position of judgment-debtors. Learned counsel for the petitioner has failed to show that the applicants in the Court below were actually parties to the decree. All that the learned counsel has urged is that the award given in Title Appeal No. 91 of 1955 mentions that the two sets of purchasers were agreeable to certain allotments. When these purchasers were not formally added as parties in Title Appeal No. 91 of 1955, it is not possible to hold that they are estopped from raising their contention because of the decree passed on award, by execution of which they were dispossessed.
5. Learned counsel for the petitioner has drawn my attention to some facts stated in paragraph 2(iv) and 2 (v) (d) of the application filed in Civil Revision No. 9 of 1963, but here also it has not been stated that the ap-
plicants in the Court below were actually parties to the award, as it could not very well be said.
The point of estoppel raised by the learned counsel for the petitioner must, therefore, fail. Both the points raised by the learned counsel for the petitioner having failed, these two applications must fail and they are dismissed with costs. So far as Civil Revision No. 9 of 1963 is concerned, the costs will be payable to opposite party NOS. 1 and 2, and so far as Civil Revision No. 12 of 1963 is concerned, the costs will be payable to opposite party Nos. 1, 2 and 3. In each of these two applications, the hearing fee is assessed at Rs. 32/-.