Impleading application in execution proceedings
shivakumarb
(Querist) 12 March 2020
This query is : Resolved
dear sir ,
i am the decree holder in the execution petition JDR is placed exparte, now the HONBLE Court has been issued sale notice , that time third party has filed Order ! Rule 10(2) OF CPC
Now the question is whether the above said application is maintainable r not in Execution petition
can i have
please provide any citation of Apex court
Raj Kumar Makkad
(Expert) 12 March 2020
Madras High Court
R.J.Paul vs S.N.Kulasekaran on 9 February, 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:09 -02-2010
CORAM
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
C.R.P.NPD.Nos.1626 & 3001 of 2009
and
M.P.Nos.1+1+2 of 2009
R.J.Paul .. Petitioner
in both revisions
Vs
1.S.N.Kulasekaran
2.S.Rajeswari
3.S.Packiaraj .. Respondents
in both revisions These Civil Revision Petitions are filed Section 115 of CPC, to set aside the order dated 12.2.2009 passed in C.M.P.No.1808 of 2007 in C.M.A.No.56 of 2007 on the file of VI Additional Judge, City Civil Court, Chennai and to set aside the order dated 12.2.2009 passed in C.M.A.No.56 of 2007 on the file of VI Additional Judge, City Civil Court, Chennai respectively.
For Petitioner : Mrs.R.T.Shyamala
For respondents : Mr.S.Muthudurai.
C O M M O N O R D E R
C.R.P.NPD.No.1626 of 2009
The petitioner/third party has filed this revision petition as against the order dated 12.2.2009 in C.M.P.No1808 of 2007 in C.M.A.No.56 of 2007 passed by the learned VI Additional Judge, City Civil Court, Chennai in dismissing the impleading petition filed by the petitioner under Order 1 Rule 10 of Civil Procedure Code.
2. The learned first appellate authority, while passing orders in C.M.P.No.1808 of 2007 in C.M.A.No.56 of 2007 on 12.2.2009 has among other things observed that '... . . . . The said Rajeswari already has been arrayed as party in E.A.No.84/99 and after elaborate discussion, the trial Court decided the matter. Hence what are the transactions after the disposal of the E.A through the said Rajeswari, it amounts to lis pendency. Hence the petitioner is not a necessary or a proper party to decide the issue in the CMA. Affidavit of the petitioner revealed that he purchased the property from Alagarsamy, power agent of Rajeswari in the year 2002. Hence he has not come under Order 1 Rule 10 CPC as necessary or proper party since his transaction is only lis pendency etc and resultantly dismissed the petition.
3. The learned counsel for the petitioner contends that this Court in order dated 20.10.2008 in CRP(NPD) NO.3440 of 2008 has directed the first appellate Court to number the petition filed by the petitioner to implead him as party and has also directed to dispose of the said petition, after giving notice to the respondents, but the first appellate Court, number the impleading petition C.M.P.No.1808 of 2007 and hearing the arguments in the said petition and posted the case for orders on 12.2.2009 and to the surprise of the petitioner, orders were passed in C.M.A.No.56 of 2007 and the impleading petition was dismissed on the ground of Lis Pendency and more over the first appellate Court has not provided any opportunity to the petitioner or an obstructor to place their arguments in the main civil miscellaneous appeal and indeed the first appellate Court has not appreciated the fact that the obstructor succeeded before the Honourable Supreme Court and the petitioner and others, who are the purchasers of the property and after purchase of the property, the second respondent did not have any interest in the property and naturally, being a bonafide purchaser of a flat in the property, the petitioner is having the right to defend the case and as a matter of fact, before the executing Court as well as before the Honourable Supreme Court, the petitioner has succeeded and the Courts have held that the property was not described in the schedule and the property was not able to be identified by the Bailiff, but these aspects of the matter, have not been adverted to or appreciated by the first appellate Court in a real and proper perspective and therefore, prays for allowing the civil revision petition in the interest of justice.
4. The learned counsel for the first respondent/plaintiff submits that the learned first appellate authority, while dismissing the petition in C.M.P.No.1808 of 2007 has come to the right conclusion that the revision petitioner is not a necessary or proper party because of the fact that he has purchased the property from one Alagarsamy, power Agent of the second respondent and therefore, the same need not be interfered with by this Court sitting in revision.
5. Countering the submissions of the learned counsel for the first respondent/plaintiff, the learned counsel for the petitioner submits that the revision petitioner is a bonafide purchaser of the flat from the power of attorney of the second respondent by means of a registered sale deed dated 18.7.2002 and in fact, the first respondent/plaintiff earlier has filed a suit against the third respondent(in revision) in O.S.No.1311 of 1981 on the file of the learned District Munsif at Poonamallee in regard to 6 cents of land and in 1984, he impleaded one F.Nagoor as party and sought for amendment of the plaint by including another 4 cents of land and the said Nagoor sold 2970 sq.ft of land by means of a registered sale deed dated 12.10.1981 to one Deva Anbu, the vendor of the second respondent and inasmuch as the said Nagoor was impleaded as party only in the year 1984 and on that date, he had no right in respect of the property which was already sold by him and added further Mrs.Deva Anbu, who was the owner of 2970 sq.ft was not added as party at any point of time by the first respondent in the suit and a person, who lost the title even in the year 1981, was impleaded in the suit in the year 1984 and decree was passed against the third respondent and Nagoor and later the first respondent/plaintiff filed E.P.No.181 of 1991 against the third respondent ( Packiaraj) only and not against Nagoor or his legal heirs and the third respondent was the owner of six cents of land only and he is not the owner of the land purchased by Deva Anbu and the said Deva Anbu sold 2970 sqft of land to the second respondent for a valid sale consideration by means of a sale deed dated 26.3.1993.
6. Continuing further, the learned counsel for the petitioner submits that in the execution petition, the Bailiff came to the premises and sought to measure the land along with the Surveyor and in which the property belonged to Rajeswari was shown as schedule of property in the decree along with the property of the third respondent and the first respondent filed a petition to the obstruction against the second respondent and one Soundara Pandian etc and now the first respondent/plaintiff entered into a memo of compromise with the third respondent and nothing survives in the execution petition and the second respondent is only a third party and she cannot be termed as party to the suit and only after the purchase of the property has been made prior to the impleading of Nagoor, then the same cannot be termed as Lis Pendens in a civil appeal 1417 of 2001 filed by the second respondent, the Honourable Supreme Court ordered status quo in order to prevent the decree holder from executing the decree and the contempt petition filed by the first respondent was dismissed and the contempt petition filed by the first respondent before the executing Court was not numbered, since the same was not maintainable in law.
7. The stand of the petitioner is that since he has purchased the property from the obstructor that too when the case was agitated before the wrong forum, the question of Lis Pendens will not arise and further that civil miscellaneous appeal was filed with an enormous delay and therefore the purchase effected in between the dismissal of E.A.84 of 1999 in E.P.No.1311 of 1981 dated 22.11.1999 and 27.4.2006, the date of filing of C.M.A.No.56 of 2007 cannot be treated as lis pendens in the eye of law and therefore, the petitioner is a necessary party to proceed with the case.
8. The learned counsel for the petitioner cites the decision of the Honourable Supreme Court in Ashan Devi-v- Phulwasi Devi (AIR 2004 Supreme Court 511) wherein it is observed as follows:
" Provisions of O.21 Rr.97 and 99 have been widely and liberally construed to enable the executing Court to adjudicate the inter se claims of the decree-holder and the third parties in the executing proceedings themselves to avoid prolongation of litigation by driving parties to file independent suits.'
9. However, the learned counsel for the first respondent cites the decision of the Honourable Supreme Court in Sarvinder Singh-v- Dalip Singh(1996) 5 Supreme Court Cases 539)wherein it is held thus:
" A necessary party is one whose presence is absolutely necessary and without whose presence the issue cannot effectually and completely be adjudicated upon and decided between the parties. A proper party is one whose presence would be necessary to effectually and completely adjudicate upon the disputes. The respondents cannot be said to be either necessary or proper parties to the suit in which the primary relief was found on the basis of the registered Will executed by the appellant's mother. The respondents could not challenge legality or validity of the said Will.
Moreover, the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the Court. Admittedly, the authority or order of the Court had not been obtained for alienation of those properties. Therefore, the alienation would be hit by the doctrine of its pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit.'
10. He also cites the decision of this Court in G.Krishnamoorthy-v- Sukumar and four others(2003 (1) CTC 405 at 407 in paragraph 12) wherein it is observed thus:
"Section 52 of the Transfer of Property Act envisages that during the pendency of any proceeding, in any Court, in which any right to immovable 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.' Also in the aforesaid decision, it is held that Section 52 of the Property Act imposes a statutory bar of alienation by the parties to the proceeding in respect of the properties which are the subject matter of the proceeding. If any one wants to alienate the property, they ought to have obtained the prior permission of the Court which is necessary before such alienation and the intention of the Legislature is that no party to the proceeding can defeat the claim of other party, when the other party succeeds in litigation.
11. On the side of the first respondent, reliance is placed on the decision in Satyabrata Biswas -v-Kalyan Kumar Kisku(1994(2) Supreme Court Cases 266 at 267) wherein it is held hereunder:
"The tenancy in favour of the tenant was in dispute and whether the tenant had a right to create a sub-tenancy was again in dispute. Further, when the right of subtenancy was sought to be founded on an agreement dated May 10,1993, it should have occurred to the Single Judge that such a creation of sub-tenancy was clearly violative of the order of status quo passed as early as September 15,1988. The Single Judge failed to bestow a thought and entertained an oral application at the instance of a person who had nothing to do till then with the application for contempt. He had not even taken out an application to implead himself as a party. The Court cannot to render justice as it conceives put aside the law of procedure altogether and confer benedictions on parties who do not have any legal basis to found their claim.'
12. More over the learned counsel for the first respondent cites the decision in Vijayalakshmi Leather Industries(P) Ltd,Chennai-3-v- K.Narayanan and others(2003 (1) L.W.772 at 773) wherein it is among other things held as follows:
"Though Order 21, Rules 98 and 102 refer to the 'transferee from the judgment debtor' , in our considered view, the term 'transferee from the judgment debtor' would also include the transferee of a transferee from the judgment debtor. If the words 'transferee of the Judgment debtor 'mentioned in these Rules are to be given such a narrow interpretation, then the purpose of the restriction on transfer pendente lite and also the purpose of making certain provisions of C.P.C. inapplicable to such transfer will become redundant. It is the duty of the court to give full effect to the meaning of every word for the purpose for which the statute is enacted. In fact, Rules 98 and 102 of Order 21 C.P.C. must be read along with Section 52 of the Transfer of Property Act.
From the provisions S.52, T.P.Act, it could be seen that during the pendency of the proceedings in any court, in which any right to immovable property is in question, the property cannot be transferred or otherwise dealt with by any party to the suit so as to affect the right of any other party thereto under any decree or other which may be made therein except under the authority of the court. It is a clear statutory bar on the parties to the proceedings from transferring any property which is the subject matter of the litigation. In view of such statutory bar, any transfer made by any of the parties to the proceeding pendente lite is non-est in the eye of law because the transferee will be entitled for the right of his transferor alone and nothing more. The restriction imposed also includes that the transfer should not be made in such a manner to affect the right of other party. From the words 'under the authority of the Court' it is needless to explain that the party who wants to transfer the property pendente lite must get the prior permission of the court.'
13. This Court points out the decision Nanijamuddin-v- State of Rajasthan and others(1995 AIHC 2390) wherein it is held that' a plaintiff has the choice to claim relief against particular person or persons and the choice cannot be allowed to be curtailed at the behest of the defendant or defendants and therefore, the rejection of application under Order 1 Rule 10 of CPC by the Court is proper.'
14. Before the first appellate Court, the revision petitioner in CMP.No.1808 of 2007 in C.M.A.No.56 of 2007 has inter alia averred that ' the second respondent was the absolute owner of the property situated at Plot No.21, Thangam Colony Vivekandar Street, Anna Nagar West, Chennai-40, forming part of S.No.131/2,T.S.No.79, Block No.43, measuring 2970 sq.ft. and that the property was developed by constructing apartments and he purchased the undivided 350 sq.ft of the land out of the total extent of 2970 sq.ft of land which appears door No.21/2 and now the second respondent was not the owner of the property and he is the owner of the property and more over, the first respondent/plaintiff has not taken any steps to implead the purchaser of the property in the suit and since he has purchased the property in a bonafide manner from the power of attorney of the second respondent viz., P.Alagarsamy as per sale deed dated 18.7.2002, he is the necessary and proper party in the civil miscellaneous appeal and has the right to contest the case because of the fact that civil miscellaneous appeal has been filed against the order dismissing the petition to remove the objectors.
15. In the counter filed by the first respondent/plaintiff, it is stated that though the contempt petition was dismissed on the ground that the second respondent claimed to be 80 years old, direction was issued by the Honourable Supreme Court to the lower Court to pass appropriate direction, if it is proved that the second respondent raised any construction in defiance of the order of status quo passed by the Honourable Supreme Court and further the second respondent was never the owner of the suit property and she purchased the suit property from one Deva Anbu in the year 1993 during the pendency of the execution proceedings and alienated the suit property after constructing flats in the suit property in violation of the order of status quo passed by the Honourable Supreme Court and the second respondent is an illegal purchaser, trespasser and contemnor and since he is lawful owner of the suit property having proved his title to the suit property by a decree passed in his favour in the year 1988 and when that be the factual position, the petitioner having purchased the suit property from a person not having a valid title over the said suit property, cannot claim to be either a necessary or proper party and therefore, the transfer of suit property in his favour is non est in the eye of law and the original owner of the suit property Mr.Nagoor was a party to the suit and he was declared by the trial Court that he had lost title, interest and possession over the suit property as early as 1960 and therefore, the transfer of the suit property by Nagoor was void and illegal and any purchaser of the property from Nagoor could not claim any valid title or interest over the suit property and the fact remains that Nagoor lost his title, interest and possession over the suit property as early as 1960, he would not transfer the suit property in favour of any body and inasmuch as the petitioner, who has purchased the property from the second respondent(a purchase from Nagoor) has no locus standi to file the above petition for impleading himself as a party to the appeal.
16. It is to be pointed out that the first respondent/plaintiff has filed a suit in O.S.NO.1311 of 1981 on the file of District Munsif, Poonamallee against the third respondent and one F.Nagoor(deceased) and after the death of said Nagoor, his legal representatives were impleaded as defendants 3 and 4 as per order dated 11.3.1987 in I.A.No.1537 of 1983 and the trial Court has passed a decree on 29.12.1988 in the said suit filed by the first respondent/plaintiff, granting the relief of declaration and also directing the first defendant/third respondent (in C.R.P) to remove the superstructures and further he has been directed to hand over the vacant possession of the suit property to the first respondent/plaintiff ad also directed the first defendant/third respondent herein not to put up further construction and also granted the relief of interim injunction.
17. In C.R.P.1360 of 1999 filed by the third respondent against the first respondent/plaintiff, this Court, on 10.8.1999, while dismissing the revision petition has directed the Executing Court to see that the decree holder obtains physical possession of the property within a period of one month from today and report compliance of the same to this Court and also directed the trial Court to provide an adequate and necessary police protection to see that the property is delivered to the decree holder and no obstruction is caused in executing the decree and further observation that the question of identification of property in execution also does not arise since that was the matter in the suit itself, and the decree has been passed allowing the recovery of the property in the possession of the defendants and that the defendants cannot dispute the identity of the property, which is in his possession and the Executing Court has been directed to see that the warrant of delivery is also not returned on frivolous grounds, making the decree unexecutable and the Executing Court has been directed to comply with the aforesaid directions in all its seriousness etc.,
18. Earlier in C.R.P.No.138 to 143 of 2000 filed by the first respondent before this Court and in C.R.P.140 of 2000 filed by the respondents 1 and 2 and one Soundarapandian against the third respondent , this Court on 10.8.2000 has allowed all the civil revision petitions by setting aside the common order passed in E.A.Nos.78,79,84,85 and 86 of 1999 dated 22.11.1999 and also directed the Executing Court to pass and issue appropriate orders necessary to give effect to the order within fifteen days on production of the steno copy of this order.
19. In S.L.P.No.13755/2000 filed by the second respondent against the order dated 10.8.1999 passed in CRP.No.140 of 1999 before the Honourable Supreme Court, the Honourable Supreme Court on 11.9.2000 has ordered notice and pending further orders the status quo as to possession shall be maintained. On 19.2.2001, in S.L.P.No.13755 of 2000, the Honourable Supreme Court has directed the status quo in relation to the appellant(second respondent) shall be maintained pending disposal of the appeal. On 29.3.2006, the Honourable Supreme Court in Civil Appeal No.1417 of 2001 filed by the second respondent as against the order of this Court in C.R.P.Nos.138 to 143 of 2000 dated 10.8.2000, the Honourable Supreme Court has inter alia observed that '. . . . . . . in our view, the High Court could not have acted in a manner contrary to the express provision of Section 115(2) of the Code of Civil Procedure and that since an appeal was provided under Order XXI Rule 103 of the Code of Civil Procedure which treated the order passed by the executing Court as a decree subject to the same conditions as to appeal against such decree, a revision petition under Section 115, CPC against such an order is not maintainable. We must, therefore, hold that the High Court exceeded its jurisdiction in entertaining a revision petition under Section 115 CPC against an order passed in proceeding under Order XXI Rule 97 CPC, even if we treat the application filed under Section 151 CPC to be an application under Order XXI Rule 97 CPC and held the order of the High Court cannot be sustained and accordingly allowed the appeal.'
20. Be that as it may, this Court pertinently points out that the decision in Smt.Saila Bala Dassi-v- Sm.Nirmala Sundari Dassi (AIR 1958 Supreme Court 394 wherein it is held as follows:
" Even if a Suit is pending when the transferer in favour of the appellant was made, that would not affect the result when no application had been made by her to be brought on record in the original court during the pendency of the suit. The application made to the appellate Court cannot be sustained under O.22 R.10 , when the transfer in favour of the appellant was made prior to the filing of that appeal and not during its pendency.' Also in the aforesaid decision at paragraph 9 at page 397 it is held thus:
"As a purchaser pendente lite, a person will be bound by the proceedings taken by the party in whose favour the decree is passed in execution of her decree, and justice requires that she should be given an opportunity to protect her rights."
21. In another decision in Dev Raj Dogra-v- Gyan Chand Jain(AIR 1981 Supreme Court,981 at page 990 in paragraph 16) it is among other things observed as follows:
"In the instant case an outside auction purchaser is seeking recovery of the physical possession of the property purchased by him at the auction from the appellants-tenants who are in possession of different portions of the said premises as tenants of the said portions. The auction purchaser in the instant case was not the mortgagee and he has no party to the suit in which the compromise decree was passed. Section 52 in clear terms speaks of the rights of the parties to the suit or proceeding."
In the aforesaid decision at page 990, the observations of the Honourable Supreme Court made in the case of Jayaram Mudaliar (AIR) 1973 SC 569) at page 581 is mentioned as below:
" It is evident that the doctrine, as stated in Section 52, applies not merely to actual transfers of rights which are subject matter of litigation but to other dealings with it by any party to the suit or proceeding, so as to affect the right of any other party thereto. Hence it could be urged that where it is not a party to the litigation but an outside agency, such as the tax collecting authorities of the Government, which proceeds against the subject matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by Section 52. Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation the Court may bind them to their own acts. All these are matters which the Court could have properly considered. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward."
22. In yet another decision of the Honourable Supreme Court in Lal(dead) by his legal representatives -v- Sheonarain (AIT 1970 Supreme Court 1717) it is observed as follows:
"If the property was acquired pendente lite, the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of acquisition. This result is not avoided by reason of the earlier attachment. Attachment of property is only effective in preventing alienation but it is not intended to create any title to the property. On the other hand, Section 52 places a complete embargo on the transfer of immovable property, right to which is directly and specifically in question in a pending litigation. Therefore, the attachment is ineffective against the doctrine.
It is true that Section 52, strictly speaking, does not apply to voluntary alienations such as Court sales but it well established that the principle of lis pendens applies to such alienations "
Also in the aforesaid decision at page 1721 it is held as follows:
"Lastly it was contended that the sale was by Court auction and the doctrine of lis pendens would not apply to such a sale. This point was considered in Samarendra Nath Sinha -v- Krishna Kumar Nag.1967-2 SCR 18= (AIR 1967 SC 1440) by one us(Shelat.J) and it was observed as follows:
". . . . . . The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holder-v- Monohar(1887) 15 Ind. App.97 where the facts were almost similar to those in the instant case. It is true that Section 52,strictly speaking, does not apply to involuntary alienations such as court sales but it is well established that the principle of lis pendens applies to such alienations(see Nilkant. v. Suresh Chandra (1885)12 Ind App 171 and (1897)24 Ind App 170(PC). This ground also has no validity.'
23. It is borne in mind to bring a person as a party/defendant is not a substantive right but one of procedure and the Court has discretion in this regard. More over, when a person is not a party to the original suit, he cannot be added as a party to an appeal. As a matter of fact, the purchaser of the properties in the suit Pendente Lite is not a necessary party and the impleadment would not be allowed. Added further that in the eviction suit against the tenant, the purchaser of the suit property under agreement of sale is neither a necessary nor a proper party.
24. The purchaser Pendente Lite is not in a better position than the defendant whose title is subjudice in the considered opinion of this Court. In deed Section 52 of the Transfer of Property Act is not intended for protection of transferors in a pending litigation. The conditions for application of Lis Pendens principles are:
(1) a suit or proceeding wherein any right to immovable property directly or substantially in question must be pending (2) the suit or proceeding ought not to be a collusive one (3) Such property cannot be transferred or otherwise dealt with by any one by suit or proceedings so as to attract the right of party under a decree or an order that may be passed. That apart, the purpose of Section 52 of Transfer of Property Act is to maintain the status quo unaffected by the act of parties to the litigation.
25. A third party purchaser, pending suit, is neither a necessary and proper party to be impleaded. Where the impleading an applicant will give rise to dispute in the suit property which would be beyond the scope of suit, then, he is not a necessary and proper party as opined by this Court.
26. The Doctrine of Lis Pendens is known in the maxim as 'Ut lite pendente nihil innovetur'. The principle of lis pendens is explained in the decision Bellamy -v- Sabine(1857)1 De G & J 566 at 578, 584 where LJ Turner observed as follows:
" It is,as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation- that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding."
The right visualised as per Section 52 of Transfer of Property Act may be used both as a sword and a shield, depending on the facts as to(i) what right or interest is transferred?(b) who the affected party is ? and (c) how and, in what manner the 'transfer' is likely to 'affect' any individual to the pending 'proceeding?. Any individual, who is to like to use it as a sword should, first establish his right to do so. Indeed,the Doctrine of Lis Pendens is aimed at to strike at the endeavours by litigants to circumvent the jurisdiction of the Court in which the dispute on interests or rights in immovable property is pending, by private dealings that may remove the subject matter of litigation from the ambit of the power of the Court to decide a pending dispute, or which may frustrate its decree as per the Honourable Supreme Court in Rajendar Singh-v- Santa Singh (AIR 1973 SC 2537).
27. It is immaterial whether the alienee pendente lite had, or had not, notice of the pending proceeding as per the decision in Maharaj Bahadur-v- Shaikh Abdul Rahim(1922 )ILR 1 Pat.5). Also the defence of bonafide transferee or value without notice is not available as per the decision in Ceean International Pvt.Ltd-v- Ashok Surana (AIR 2003 Cal 263).
28. It is significant for this Court to point out that an individual whose rights are affected, must be a party between whom and the party alienating, there is an issue for decision. Further, an appeal or execution proceedings is a continuation of the suit or relevant proceedings and Lis Pendens continues during the appeal or execution. The Explanation 1 Section 52 of the Transfer of Property Act shows that the pendency of a suit will include the stage after the final decree till complete satisfaction and discharge of such decree or order. Even after the dismissal of a suit, a purchaser is subject to Lis Pendens, if an appeal is later on file, in the considered opinion of this Court.
29. More over in law, the purchaser pendente lite is bound by the verdict of the litigation, the aim of Section 52 of Transfer of Property Act is not to defeat any just and fair claim but only to subject them to the authority of the Court which is dealing with the property to which claims are projected. Lis continues till the decree is finally executed or barred by limitation.
30. At this juncture, this Court significantly points out that in the decision Akula Ramuli -v- Kammari Balaram(2003(AIHC) 2538 at page 2541, it is held that ' if the transfer takes place during pendency of a suit or subsequent there to, the same will have to be ignored out right by an executing Court. In Deccan Enterprises-v-Prem Raju alias Prem (2002(AIHC)381 at 385 (Kant) it is held that ' a person who is claiming through Judgment Debtor has no right to file an application under Order 21 Rule 97 CPC.
31. On a careful consideration of respective contentions, this Court is of the considered view that the petitioner has purchased the suit property during the pendency of the suit proceedings and the petitioner's transferor viz., second Respondent(Rajeswari) has transferred the same and therefore in the teeth of Section 52 of Transfer of Property Act 1882, the transfer of property in favour of the petitioner is clearly hit by principle of Lis Pendens and as such the petitioner is not a proper or a necessary party to the Civil Miscellaneous Appeal and in that view of the matter, this revision fails.
C.R.P.(NPD) No.3001 of 2009
32. The petitioner/third party in this revision petition has prayed for setting aside the Judgment dated 12.2.2009 in CMA No.56 of 2007 passed by the learned VI Additional Judge, City Civil Court, Chennai on the ground that the learned first appellate authority has allowed civil miscellaneous appeal when both sides had not argued their case and therefore the said judgment suffers from material irregularity, besides being contrary to law and evidence and that further no opportunity was afforded to the petitioner or obstructor to put forward their arguments in the main civil miscellaneous appeal, when the case was posted for orders in C.M.P.No.1808 of 2007 on 12.2.2009 and also that the first appellate authority had not taken into account of the fact that in the main civil miscellaneous appeal the first respondent filed C.M.P.No.1791 of 2008 to summon the second respondent to give evidence and further refused to argue the main civil miscellaneous appeal and that the order was passed by the first appellate Court arbitrarily and suo moto and this itself was in violation of the principle of natural justice and as a matter of fact the first appellate Court heard the argument of the counsel for the petitioner only in the impleading petition C.M.P.No.1808 of 2007 and the first appellate Court never posted the main civil miscellaneous appeal for argument and after hearing the argument in C.M.P.No.1808 of 2007 passing orders in main Civil Miscellaneous Appeal by the first appellate Court was an unknown practice and therefore, prays for setting aside the judgment passed in C.M.A.No.56 of 2007 dated 12.2.2009 and consequently to allow the revision petition.
33. In this connection, it is to be pointed out that an endorsement in the notes paper in C.M.P.No.1808 of 2007 in C.M.A.No.56 of 2007 dated 12.2.2009 indicates that both sides had argued and the matter was posted for orders on 22.1.2009 and since the orders were not made ready,the matter was directed to be called on 27.1.2009 and again 27.1.2009, the orders were not made ready and the matter was directed to be listed on 6.2.2009 and on 6.2.2009 since the orders were not made ready, the matter was directed to be listed on 12.2.2009 and on 12.2.2009 orders were pronounced in dismissing the petition.
34. Significantly, in the endorsement dated 12.1.2009 of the notes paper in C.M.A.No.56 of 2007 shows that the appellant counsel was not ready to argue the Civil Miscellaneous Appeal etc and that as per direction of the High Court, Civil Miscellaneous Appeal was to be disposed of and hence perused the appeal memo and heard the Civil Miscellaneous Petition argument and posted the matter for suitable orders in Civil Miscellaneous Appeal on 22.1.2009 and on 22.1.2009, the matter was directed to be called on 27.1.2009 for suitable orders by stating that the connected Civil Miscellaneous Petitions are pending and further on 27.1.2009, the matter was directed to be called along with CMP on 6.2.2009 and again from 6.2.2009, the matter was adjourned to 12.2.2009 and on 12.2.2009 in the main CMA NO.56 of 2007 Judgment was passed in allowing the appeal with costs setting aside the order passed by the learned District Munsif, Poonamallee dated 22.11.1999 in E.A.No.84/99 in E.P.No.181 of 1991 in O.S.No.1311 of 1981.
35. It is significant for this Court to point out that the very same counsel, who appears for the revision petitioner/third party in C.R.P.(NPD) Nos.1626 of 2009 and 3001 of 2009, has appeared for Rajeswari(second respondent in CRP) and first respondent in Civil Miscellaneous Appeal before the first appellate authority. At this stage, it is apt for this Court to extract the relevant preamble portion Judgment passed in CMA No.56 of 2007 dated 12.2.2009 which reads as follows:
" This appeal coming on 12.10.2009 before me for final hearing in the presence of M/s S.Muthudurai counsel for the appellant and of Messrs R.T.Shyamala and J.Devi counsel for respondents and upon hearing the arguments and having stood over for consideration till this day the Court delivered the following Judgment'
36. A reading of the preamble portion of CMA Judgment referred to above shows that the first appellate authority has delivered the Judgement in CMA No.56 of 2007 dated 12.2.2009 after hearing the arguments of the counsel but the notes paper endorsement in CMA No.56 of 2007 dated 12.2.2009 indicates that the first appellate authority had endorsed to the effect that 'appellant counsel was not ready to argue Civil Miscellaneous Appeal etc. . . . . and hence perused the appeal memo and heard the CMP arguments and posted the matter for suitable orders in CMA on 22.1.2009 and finally on 12.2.2009 it was endorsed as 'orders pronounced'.
37. Generally speaking, that a Court of law is to pronounce a Judgment in a matter before it,only after hearing their parties or their pleaders in the considered opinion of this Court. In this connection, this Court, in the natural justice, points out that in the decision Makhu Sahu and another-v- S.Kamta Prasad Sahu and others(AIR 1934 Pat at Page 341 and 342 ) it is held that 'simple order of dismissal may be passed if the appeal is not admitted and it is not until after admission and after hearing that a judgment is required: AIR 1926 Rang 129:AIR 1931 All 567(FB) and 25 Cal 97, Diss from:37 Bom 610 Expl and Dist'. Further this Court recalls the decision in Daulat Singh-v- Maharaja Kesho Prasad Singh(AIR 1921 Patna 325) wherein it is held thus:
" Where the plaintiff does not appear and the defendant appears, there is no discretion left in the trial Court as is given to the Appellate Court under O.41 R.17. While the first Court is bound to dismiss the suit for default under O.9 R.8, the Appellate Court is not bound to make an order that the appeal be dismissed, if appellant is absent and respondent appears, but it has jurisdiction to decide the appeal on merits'.
38. It is relevant to make a mention that Section 40 of the Indian Evidence Act 1872 refers to Judgment interparties. It is essential that the previous Judgments or decrees are to be between the same parties or those through whom the litigants in the subsequent suit or proceeding is claimed. Significantly, a Court of record of justice consists of (1) substantive(2) judicial operation substantial operation refers to the Court of records or attests its own proceedings and acts. In the judicial operation, the Court expresses its opinion on the matter in question. As a matter of fact, every Judgment therefor is conclusive evidence for or against all persons (Whether parties, privies or strangers) of its own existence, date and legal effect as distinguished from the accuracy of the decision rendered. Where the action is brought against a person for acts done in a capacity, the Judgment is conclusive in favour of the person of truth of the facts stated therein. But the presumption only extend to what has been called the substantive as distinguished from judicial operation of record (Halsburry 3rd Ed.Volume 15 page 395).
39. More over, a Judgment in personam or interparties operates as an estoppel or conclusive evidence against parties and privies of the truth of the facts upon which such Judgment is based. A Judgment in personam of a competent Court is conclusive proof, in subsequent proceedings between the same persons or their privies of the matters actually decided as well as all the grounds of the decision where these can be deciphered from the Judgment itself.
40. Besides the above, the principle of Section 43 of the Indian Evidence Act,1872 is that ' the Judgments excepting those upon question of a public and general interest, Judgment in rem or when necessary to prove the existence of a Judgment or Order or decree which may be a fact in issue are irrelevant one.
41. A Court of law as per Section 115 of CPC can exercise jurisdiction when the Subordinate Court powers to have exercised a jurisdiction not vested in it by law or have vested to exercise a jurisdiction so vested or to have acted of its jurisdiction illegally and with material irregularities. Also in revision, any illegality or irregularity or impropriety coming to its notice is capable of doing corrected by the High Court then the High Court can pass appropriate order as per the law requires and justice demand. Whereas the power of the High Court under Article 227 of the Constitution of India can be exercised to re-appreciate any material whether the trial Court is right or the appellate Court is right, though the said power will have to be exercised sparingly. Indeed, the power of High Court under Article 227 of the Constitution of India is a discretionary one and cannot be claimed as a matter of right. However, it is well settled that any order passed by the subordinate Court or the Tribunal Subordinate Court to High Court is subject to the supervision and superintendence under Article 227 of the Constitution of India subject to, the aggrieved person claiming that there has occasioned a miscarriage of justice before the Trial Court.
42. It is true that the term ' natural justice' has not been defined any where. However, it can be safely stated that natural justice is the natural sense of what is right or wrong. In fact 'natural justice' stood for justice according to conscience. A Judge of a Court of law is guided by conscience while deciding the matter. In short, a Court of law has a duty to act judicially and then it must hear both sides. The requirement of hearing both sides and rendering a finding or arriving at a decision, is a part of a duty of a Judge in a Court of law and that too in a justice delivery system in a processual fashion in the considered opinion of this Court.
43. In the instant case on hand, in C.M.A.No.56/2007, the first respondent/appellant's counsel was not ready to argue the civil miscellaneous appeal etc and hence the first appellate Court perused the Appeal Memo and also as seen from the notes paper, it had not heard the argument of the learned counsel for the respondents. But ultimately, passed the Judgment in Civil Miscellaneous appeal on 12.2.2009 but the preamble portion of the Judgement in CMA shows that arguments were heard and therefore the concept of hearing both sides had not been adhered to and given goby by the first appellate Court and therefore, this Court, without going into the merits of the matter is of the considered view that the said Judgment in C.M.A.No.56 of 2007 was pronounced without hearing the parties or their pleaders and there was violation of principles of natural justice and opines that the said civil miscellaneous appeal Judgment can be questioned only by the interse parties and not by the third party/purchaser viz., the revision petitioner.
44. By and large, an individual who feels disappointed with a result of a case is not a person aggrieved. However , the order must cause him a legal grievance by wrongly depriving him of something. Admittedly, the revision petitioner is not a party in O.S.No.1311 of 1981 on the file of the learned District Munsif, Poonamallee. More over even in E.A.No.84 of 1999 in O.S.No.1311 of 1981, the revision petitioner/third party is not a party. But subsequently Rajeswari is a party as obstructor/third party in E.A.No.84 of 1999 . In C.M.A.No.56 of 2007, the said Rajeswari is shown as first respondent. Even though the terms ' person aggrieved' are of wide import and they mean a person who has suffered a legal grievance viz., a person against whom a decision has been pronounced which has lawfully deprived him of something or wrongly refused to him something yet on the basis of the facts and circumstances of the case, this Court is of the considered view that since the petitioner/third party has purchased the suit property from the second respondent Rajeswari, during the pendency of the suit proceedings, the civil revision filed by him is not maintainable and in that view of the matter, this civil revision petition fails.
45. In the result C.R.P.(NPD) No.1626 of 2009 and C.R.P(NPD) No.3001 of 2009 are dismissed leaving the parties to bear their own M.VENUGOPAL,J sg costs. Consequently, connected M.Ps are also dismissed. However, the dismissal of the revision petitions will not preclude the aggrieved party/interse party to the relevant proceedings to question about the Judgment of the first appellate Court in CMA.No.56 of 2007 dated 12.2.2009 before the appropriate forum in the manner known to law and seek appropriate remedy thereto.
09-02-2010 Index:yes Internet:yes sg To The Registrar, City Civil Court, Chennai order in C.R.P(NPD) Nos.1626 and 3001 of 2009 and connected M.Ps.
PRE-DELIVERY ORDER IN C.R.P.(NPD) Nos.1626 & 3001 of 2009 To The Honourable Mr.Justice M.VENUGOPAL Respectfully submitted P.A.
Raj Kumar Makkad
(Expert) 12 March 2020
Also go through the following link:
https://indiankanoon.org/doc/1868351/
Rajendra K Goyal
(Expert) 13 March 2020
Expert Raj Kumar Makkad Ji has provided suitable citation.
However, it is better to discuss with your lawyer, he is well conversant with full facts.
T. Kalaiselvan, Advocate
(Expert) 16 March 2020
Even though the citation has been given by an expert above, you may consult your lawyer and ask him to get more such citations and proceed
