Orissa High Court
Upendranath Samantasinghar And ... vs Bikash Chandra Mohapatra And Another on 11 December, 2014
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF ORISSA : CUTTACK
WA No.45 of 2014
From an order 17.12.2013 dated 03.03.2012 passed by the learned
Single Judge in W.P.(C) No.2013.
__________
Upendranath Samantasinghar
and another .... Appellants
-Versus-
Bikash Chandra Mohapatra
and another .... Respondents
For the Appellants : Mr A.R. Dash. A.C. Baral,
For the Respondents : Mr R.C. Sarangi (O.P.2) &
Mr Kishore Ku. Jena (O.P.1)
___________
PRESENT:
THE HONOURABLE CHIEF JUSTICE MR. AMITAVA ROY
AND
THE HON'BLE DR. JUSTICE A.K. RATH
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Decided on : 11.12.2014
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Amitava Roy, C.J. The instant appeal witnesses a challenge to the
judgment/order dated 17.12.2013 rendered in W.P.(C) No.1754
of 2012 interfering with the order dated 21.01.2012 passed by
the learned Civil Judge (Sr. Division), Bhubaneswar, in CMA
-2-
No.1/12 arising out of C.S. No.42/95 directing the respondent
no.2 herein (plaintiff) to delete the name of respondent no.1 from
the said application (CMA No.1/12) filed to restore CMA Nos.250
and 251 of 2009.
2. We have heard Mr A.R. Dash, learned counsel
for the appellant, Mr R.C. Sarangi, learned for respondent no.2
and Mr K. Jena, learned counsel for respondent no.1.
3. The facts, in brief, would be necessary to
outline the backdrop.
The respondent no.2 instituted C.S. No.42/95
against the appellants. The suit was dismissed for default on
18.7.2003. The respondent no.2 (plaintiff) sold the suit property
to respondent no.1 on 3.5.2010. Prior thereto, he had filed an
application under Order 9 Rule 9 read with Section 151 of the
Code of Civil Procedure (for short, hereinafter referred to as "the
CPC/Code") for restoration of the suit along with an application
under Section 5 of the Indian Limitation Act, 1963 (hereinafter
referred to as "the Act"). These applications were registered as
CMA Nos. 250 and 251 of 2009. These petitions were also
dismissed for default on 11.11.2010. Thereafter respondent nos.
1 and 2 i.e. the transferor and the transferee jointly filed CMA
No.1/12 seeking restoration of CMA Nos.250 and 251 of 2009.
4. By order dated 21.1.2012 CMA No.1/12 was
disposed of by the learned trial Court by requiring respondent
no.2 (plaintiff) to delete the name of respondent no.1 from the
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cause title of the application. As the text of the order dated
21.1.2012 would reveal, the learned trial court was of the view
that in terms of the Code it was the plaintiff alone who could file
an application for restoration of the suit dismissed for default
under Order 9 Rule 9 CPC and that such application under the
provisions of the Code by any one else was not maintainable. It
was held as well that no other person could also to be joined
with the plaintiff in such an application.
5. Being aggrieved, respondent no.1 (transferee)
invoked the writ jurisdiction of this Court and by the
judgment/order dated 17.12.2013 passed in W.P.(C) No.1754 of
2012 and impugned in the instant appeal, the learned Single
Judge relying principally on Order 22 Rule 10 of the Code and
the decision of the Apex Court in Raj Kumar v. Sardari Lal
and Ors, 2004 SAR (Civil) 181, permitted the writ petitioner-
respondent no.1 herein to continue in CMA No.251/09 and the
learned court below was directed to decide the suit on its own
merits.
6. Mr A.R. Dash, learned counsel for the
appellants, has emphatically argued that the transfer of the
property involved not having been effected during the pendency
of the suit, neither Section 52 of the Transfer of Property Act,
1882 (for short, hereinafter referred to as "the T.P. Act") nor
Order 22 Rule 10 of the Code is attracted to the facts of the case
and thus the impugned judgment and order is not sustainable in
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law and on facts. The decision of the Hon'ble Apex Court in Raj
Kumar (supra) also on the same logic is not applicable, he
argued. Mr Dash has urged that even assuming that Section 52
of the T.P. Act and/or Order 22 of the Code had any application
in the instant case, opp. party no.1 without being first impleaded
in the suit cannot maintain an application with the original
plaintiff to restore an application under Order 9 Rule 9 of the
Code, dismissed for default. According to him, as under Order 22
Rule 10 CPC, in case of assignment, creation or devolution
during the pendency of the suit, it by leave of this Court can be
continued by/or against the person to or upon whom such
interest has come or devolved, it was incumbent on the part of
opp. party no.1 to first obtain such leave before joining the
original plaintiff to file restoration application under Order 9
Rule 9, CPC earlier dismissed for default. Mr Dash has insisted
that the direction contained in the Judgment and order to the
learned trial court to decide the suit on merits inheres a
mandate by this Court to recall the dismissal of the suit, which
is impermissible as the application for restoration of the Misc.
Case under Order 9 Rule 9 CPC is still pending to be considered
by the learned trial court.
7. Mr Sarangi, per contra, has urged that as it is
more than evident from Section 52 of the T.P. Act and Order 22
Rule 10 of the Code that a transferee pendente lite in a suit has
the locus to apply for restoration of the suit dismissed for non-
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prosecution, the plea to the contrary is misconceived. According
to the learned counsel for respondent no.1 as in view of Section
146 of the Code, the respondent no.1 is entitled in law to further
a proceeding arising out of the suit, as a representative of the
original plaintiff claiming under him, the contention that he
ought to have obtained prior leave of the Court to do so is
obviously fallacious.
8. We have examined the foundational facts which
are not in dispute. The rival arguments have been analyzed as
well.
9. The joint application filed by respondent nos.1
and 2 registered as CMA No.1/12 discloses that the same came
to be lodged on the receipt of summons in C.S. No.1865/2001
instituted by the appellant no.1 impleading both of them as
defendants therein. It was stated in the said application that
respondent no.2 herein had sold the suit land to respondent
no.1 on 3.5.2010 and thus though the latter was not plaintiff in
C.S. No.42/95 nor a petitioner in CMA No.251 of 2009, he had
stepped into the shoes of the former by dint of such purchase
and as respondent no.2 was bound to safeguard the interest of
respondent no.1, the vendee, both of them had filed application
for restoration of CMA No.251 of 2009. It was averred as well in
the application that the respondent no.2 (plaintiff) was ignorant
about the dismissal of the suit and that he was dependant fully
on his conducting counsel. It was stated too that because of
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wrong entry in the diary of his learned counsel, CMA No.251 of
2009 was dismissed for default and that it was in this backdrop
that in the interest of justice the restoration application i.e. CMA
No.1/12 had been filed.
10. Section 52 of the Transfer of the Property Act,
1882, Order 22 Rule 10 of the Code and Sections 141 and 146 of
the CPC are quoted herein below being of formidable relevance.
"52. Transfer of property pending suit relating
thereto.--During the 1[pendency] in any Court
having authority 2[3[within the limits of India
excluding the State of Jammu and Kashmir] or
established beyond such limits] by 4[the Central
Government] 5[* * *] of 6[any] suit or proceedings
which is not collusive and in which any right to
immoveable 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 any decree or order which
may be made therein, except under the authority
of the Court and on such terms as it may impose.
Explanation - For the purposes of this section,
the pendency of a suit or proceeding shall be
deemed to commence from the date of the
presentation of the plaint or the institution of the
proceeding in a Court of competent jurisdiction,
and to continue until the suit or proceeding has
been disposed of by a final decree or order and
complete satisfaction or discharge of such decree
or order has been obtained, or has become
unobtainable by reason of the expiration of any
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period of limitation prescribed for the execution
thereof by any law for the time being in force."
"Order 22 Rule 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."
"141. Miscellaneous proceedings - The procedure
provided in this Code in regard to suits shall be
followed, as far as it can be made applicable, in all
proceedings in any court of civil jurisdiction."
"146. Proceedings by or against representatives -
Save as otherwise provided by this Code or by any
law for the time being in force, where any
proceeding may be taken or application made by
or against any person then the proceeding may be
taken or the application may be made by or
against any person claiming under him."
11. It would be explicit from Section 52 of the T.P.
Act that if during the pendency of any 'suit' or 'proceeding' which
is not collusive and in which any right to immovable property is
directly or specifically in question, such 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 any decree or order, which may be made therein, except
-8-
under the authority of the court and on such terms as may be
imposed.
12. The explanation to section 52 clarifies that the
pendency of a suit or proceedings shall be deemed to commence
from the date of the presentation of the plaint or the institution
of the proceeding in a court of competent jurisdiction and would
continue until the suit or proceeding is disposed of by a final
decree or order and complete satisfaction of discharge of such
decree or order has been obtained or has become unobtainable
by reason of the expiration of any period of limitation prescribed
for execution thereof by any law for the time being in force.
13. It is thus patent that mere dismissal of a suit or
proceeding for default would not oust the application of Section
52 of the T.P. Act and in terms of the explanation provided, the
pendency thereof would continue till complete satisfaction or
discharge of decree or order that may be obtained or would
become unobtainable by reason of the expiration of any period
prescribed for execution therefor.
14. Section 141 of the Code predicates that the
procedure provided in CPC with regard to suit would be followed
as far as can be made applicable in all proceedings in any court
of civil jurisdiction. The explanation thereto clarifies that the
expression "proceedings" would include one under Order 9 and
Section 141 of the Code. A proceeding under Order 9 Rule 9 of
-9-
the Code would thus come within the ambit of Section 52 of the
T.P.Act and Order 22 Rule 10 CPC.
15. Section 146 conceives of furtherance of
proceedings by or against representatives of any person claiming
under his title and would have application unless excluded by
any provision of the Code or by any law for the time being in
force. This salutary provision thus recognizes a substantive right
in favour of a representative of any person involved in any
proceeding as contemplated to pursue the same on his/her
behalf. A conjoint reading of Section 146 and Order 22 Rule 10
thus recognizes the right of a representative of a person claiming
under him, amongst others by virtue of assignment, creation or
devolution of any interest during the pendency of a suit or
proceeding in any court of civil jurisdiction to continue with it on
his behalf. Such a right is therefore fundamental and intrinsic
for such a representative claiming under the person concerned.
16. In Raj Kumar (supra), their Lordships of the
Apex Court did encounter a fact situation where the suit
property had been purchased by respondent no.4 therein from
the defendants being unaware of the pendency of a suit filed
against his vendors. The suit was decreed ex parte on
27.11.1995 whereafter respondent no.4 filed an application
under Order 9 Rule 13 of the CPC to set aside the decree and
also made a prayer under Order 22 Rule 10 of the CPC for being
brought on record. This application was allowed by the learned
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trial court after condoning the delay in filing the same and the ex
parte decree was set aside. Before the Apex Court it was
contended on behalf of the appellant-plaintiff that the
application under Order 9 Rule 13, CPC should have been filed
by the defendants and none else and that as respondent no.4, a
transferee pendente lite had failed to take prompt steps under
Order 22 Rule 10, CPC to be brought on record, he remained
bound by the decree.
17. Their Lordships held that the doctrine of 'lis
pendens' expressed in the maxim "ut lite pendente nihil
innovetur" has been statutorily incorporated in Section 52 of the
T.P. Act and that as the defendant could not by alienating the
property, during the pendency of the litigation, venture into
depriving the successful plaintiff of the fruits of the decree. It
was propounded that a transferee pendente lite is treated in the
eye of law as representative of the judgment debtor and is bound
by the decree passed against the judgment debtor even if the
defendant had chosen not to bring the transferee on record by
apprising his opponent and the court of the transfer nor the
transferee had come on record by taking recourse to order 22
Rule 10 of the CPC. While referring to Section 146 of the Code in
this regard as well, their Lordships ruled that the decree was
executable against respondent no.4 being a lis pendente
transferee though not joined in the suit. It was held as well that
such a person could prefer an appeal being a person aggrieved
-11-
and was also liable to be proceeded against in the execution of
the decree. Their Lordships thus proclaimed that such a person
does have locus standi to move an application for setting aside
an ex parte decree passed against the person in whose shoes he
had stepped in. It was thus enunciated that the word 'he' used in
Order 9 Rule 13 of the Code could not be construed with such
rigidity and constriction to exclude the person who had stepped
into the shoes of the defendants from moving an application for
setting aside the ex parte decree more particularly in view of
Section146 of the Code. The plea of locus standi against opp.
party no.4 to maintain the application under Order 13 of the
Code was thus rejected.
18. The Hon'ble Apex Court clearly as a corollary
upheld the locus standi of respondent no.4 acting on the
principle of representation envisioned in Section 146 of the Code
by departing from the literal construction of Order 9 Rule 13
CPC as if restricting an application thereunder only to the
defendant in the suit.
19. In Krishnaji Pandharinath v. Anusayabai
and another, AIR 1959 (Bom) 475, their Lordships of the
Bombay High Court with particular reference to the explanation
to Section 52 of the T.P.Act held that after the disposal of the
suit, the lis continues so as to prevent the defendants from
transferring the property to the prejudice of the plaintiff.
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20. This decision only fortifies the plea that even
after the dismissal of the suit for default as in the instant case,
for the purpose of Section 52 of the T.P.Act, the lis did continue
and thus with the transfer of the suit property in favour of
respondent no.1 herein he indeed had acquired a right as a
representative of his vendor (rrespondent no.2) to pursue any
proceeding contemplated by the court relatable thereto (suit)
claiming under him.
21. Our attention has not been drawn to any
provision of the Code barring the application of Section 146 of
the Code to the facts of the case. There is no manner of doubt
that on the date on which CMA No.1/12 had been filed,
respondent no.1 had by dint of purchase of the suit property
acquired interest therein. As contemplated in Section 146 and
Order 22 Rule 10 of the Code he was thus entitled in law to
pursue the same as the representative of respondent no. 2 by
claiming under him. In that view of the matter, as respondent
no.1 had joined respondent no.2, the original plaintiff in the
application for restoration of CMA Nos.250 and 251 of 2009, we
are of the unhesitant opinion that he could not have been
excluded from the said pursuit on the ground that Order 9 Rule
9, CPC did not permit him to do so. As it is, law of procedure is
handmaid of justice and has to be essentially interpreted to
subserve this paramount objective. Any exposition of the
procedural law defeating this salubrious imperative, has to be
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eschewed. The insistence for an application by respondent no.1
seeking leave of the Court to enable him to join defendant no.2
to get the earlier application under Order 9 Rule 9, CPC and that
for condonation of delay restored, on a overall consideration of
all relevant aspects as involved does not commend for
acceptance. We find ourselves with respectful agreement with
the conclusion reached in the impugned judgment and order vis-
à-vis the maintainability of CMA 1/2012. However, as the said
application awaits adjudication on merits, we hereby clarify that
the suit if eventually revived will be disposed of as expeditiously
as possible in accordance with law.
The appeal thus fails with the marginal variation
in the impugned judgment/order indicated herein above.
...............................
CHIEF JUSTICE
Dr. A.K. Rath, J.I agree.
...............................
JUDGE Orissa High Court, Cuttack Dated 11.12.2014/PCP