Punjab-Haryana High Court
Pipal Singh vs Anokh Singh And Others on 30 August, 2011
Author: Permod Kohli
Bench: Permod Kohli
CR No.2678 of 2011 (1)
In the High Court of Punjab and Haryana at Chandigarh
Date of decision: 30.08.2011
Pipal Singh .. Petitioner
Versus
Anokh Singh and others. .. Respondents
CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI
Present: Mr.Sandeep Khunger, Advocate, for the petitioner
Mr.LS Sidhu, Advocate, for the respondents.
PERMOD KOHLI, J.
This revision is directed against the order dated 15.02.2011 (Annexure P-3) passed by Additional Civil Judge (Senior Division), Zira, whereby an application under Order 22 Rule 10 of the Code of Civil Procedure filed by the applicant, petitioner herein, has been rejected.
The facts of the case are not in dispute. In a suit filed by respondent Nos. 1 to 6 herein, against respondent Nos.7 to 34, for declaration, the petitioner made an application under Order 22 Rule CR No.2678 of 2011 (2) 10 of the Code of Civil Procedure for substitution as party-defendant in place of defendant Nos. 1 and 13 to 15 in the suit. It was pleaded that during the pendency of the suit, the petitioner had purchased land measuring 41 Kanals and 18 Marlas vide registered sale deeds from defendant Nos. 1 and 13 to 15 out of the suit land and even mutations have been attested in his favour by the revenue authorities. The petitioner further stated that the interest in the part of the suit property having been devolved upon him during the pendency of the suit, the suit be continued against the applicant by substituting him in place of defendant Nos.1 and 13 to15 or in the alternative he may also be added as a party-defendant in the suit. It was also mentioned that prior to the execution and registration of the sale deeds, some agreements to sell had been executed which led to the registration of the sale deeds and resultantly sanctioning of the mutations. The trial Court vide the impugned order has rejected this application on two counts: (i) that the sale having been effected during the pendency of the suit, principle of lis pendence is applicable and the purchaser is bound by the decree that may be passed against the defendant and (ii) that a similar application by some other purchasers was also dismissed by the Predecessor-in-interest of the Presiding Officer.
I have heard the learned counsel for the parties at length and perused the impugned order.
The trial Court seems to have mis-directed itself by over looking and ignoring the provisions of Order 22 Rule 10 of the Code CR No.2678 of 2011 (3) of Civil Procedure merely on the ground that the principle of lis pendence applies and impleadment is un-necessary.
Order 22 Rule 10 of the Code of Civil Procedure reads as under:-
"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).
Clause 1 of Rule 10 of Order 22 of the Code of Civil Procedure, provides for continuation of the suit by or against the person to or upon whom such interest has come or devolved where there is assignment, creation or devolution of any interest during the pendency of the suit. Creation and devolution of interest in the part of the suit property upon the petitioner by virtue of registered sale deeds and consequential mutations, is an admitted factor. The parties to the suit are interested to continue the suit. Thus, the Court had no CR No.2678 of 2011 (4) discretion much-less a judicial discretion but to allow the suit to be continued against the petitioner by his substitution in place of defendants in the suit on the strength of the sale deeds. The application of principle of lis pendence, does not in any manner, prevent a person upon whom the interest in the suit property is created or devolved upon during the pendency of the suit to approach the Court for his substitution or his/her substitution as a party. True, logical and conclusive interpretation of Order 22 Rule 10 of the Code of Civil Procedure is that a person in whose favour an interest is created or devolved by assignment, steps into the shoes of the party to the suit whose interest such person has acquired by such assignment. Even though, Section 52 of the Transfer of Property Act, prohibits transfer of property during the pendency of the suit, except with the authority of the Court, however, such transfer per se does not become illegitimate. The only impact of Section 52 of the Transfer of Property Act is that the purchaser of the property during the pendency of the lis may be bound by the decree and such transferee may not be a necessary or a property party to be impleaded under Order 1 Rule 10 of the Code of Civil Procedure. However, the scope of Order 22 Rule 10 of the Code of Civil Procedure is slightly different and under this provision by virtue of creation or devolution of interest during the pendency of the suit, the party in whose favour such right or interest is created or devolved upon, is entitled to step in the shoes of the litigant whose interest is devolved upon him. In such a situation, Section CR No.2678 of 2011 (5) 52 of the Transfer of Property Act, does not operate as an embargo for permitting the assignee to step into the shoes of the litigating party on the strength of creation or devolution of any interest in the suit property. A similar question came to be considered by this Court in the case of Jagdish Chander & another Vs. Om Piari & others, 2008 (4) R.C.R. (Civil), 56, wherein it has been held as under:-
"12. Order 22 Rule 10 of the CPC deals with a situation, wherein pending a lis, a party assigns property or during the pending lis, an interest is created in or devolves upon a person not arrayed as a party. Such a person may, subject to the discretion of a Court, file an application praying that he be arrayed as a party, whether as a plaintiff or a defendant subject to his establishing assignment, creation or devolution of any interest in the suit property during the pendency of the suit. The words and expressions appearing in Order 22 Rule 10 of the CPC unlike the words and expressions used in Order 1 Rule 10 of the CPC, permit the suit to be continued by or against the person to or upon whom such interest has come to be assigned or devolved, subject as always to the judicial discretion of a Court. It is, therefore, apparent that the assignee of suit property, pending CR No.2678 of 2011 (6) adjudication of a lis, cannot be impleaded as a party under Order 1 Rule 10 of the CPC but may be allowed to continue or defend the suit under Order 22 Rule 10 of the CPC, by stepping into the shoes of the party assigning property to him."
The ratio of the aforesaid judgment is fully applicable to the facts of the present case.
In view of the above, this petition is allowed. The impugned order is hereby set aside. The applicant is allowed to step into the shoes of defendant No.1 and 13 to 15 on the strength of the sale deeds and the facts mentioned in the application under Order 22 Rule 10 of the Code of Civil Procedure. In the event, the plaintiff intends to continue with the suit, it shall be continued against the applicant as an assignee of defendant No.1 and 13 to 15.
30.08.2011 (PERMOD KOHLI)
BLS JUDGE
Note: Whether to be referred to the Reporter? YES