Case Title:
Bijay Kumar versus Krushna Chandra Mahapatra and
Others
Date of Order:
21st August 2024
Bench:
Justice K.R. Mohapatra
Parties:
Petitioner- Bijay Kumar
Respondent- Krushna Chandra Mahapatra and Others
Subject:
In the final analysis, the Court determined that Opposite Party No.3, who had a substantial interest in the primary matter of the dispute, was a legitimate participant in the legal procedures. The Court was informed by Mr. Baug, who is representing Opposite Party No.3, that the matter has been postponed for further consideration.
Important Provisions
Section 146 CRPC: If the Magistrate at any time after making the order under Sub-Section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof;
Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.
When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any civil Court, make such arrangements as he considers proper for looking after the properly or if he thinks fit. Appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908);
Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any civil Court, the Magistrate—
- Shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the civil Court and shall thereafter discharge the receiver appointed by him;
- May make such other incidental or consequential orders as may be just.
Section 141 CRPC: When an order has been made absolute under section 136 or section 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by section 188 of the Indian Penal Code (45 of 1860).
If such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it, either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of such person within or without such Magistrate’s local jurisdiction and if such other property is without such jurisdiction, the order shall authorise its attachment and sale when endorsed by the Magistrate within whose local jurisdiction the property to be attached is found.
No suit shall lie in respect of anything done in good faith under this section.
Order IX Rule 13 (CPC): In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further than no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
Explanation. —Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.
Facts
The judicial processes began when the Plaintiff-Petitioner initiated a lawsuit in order to obtain a declaration that would officially establish his complete ownership of the contested property. Moreover, the Plaintiff requested a statement specifying that the sale deed signed by his deceased father, Rama Chandra Mahapatra, in favour of Krushna Chandra Mahapatra, was invalid and so could not be legally enforced against him.
In addition, the lawsuit specifically sought further consequential remedies. In the present instance, Krushna Chandra Mahapatra was placed ex parte, indicating his absence to defend the case. Consequently, the lawsuit was ruled in favour of the Plaintiff-Petitioner. Following that, Krushna Chandra Mahapatra submitted petition under Order IX Rule 13 of the Civil Procedure Code in order to invalidate the ex parte judgement.
During the pending status of this application, Opposite Party No. 3 filed an application under Order I Rule 10 (2) and Order XXII Rule 10, along with Section 146 CPC, seeking to be included as a plaintiff in the proceedings organized under Order IX Rule 13 CPC. Upon the court's acceptance of this application on March 12, 2024, the current Civil Miscellaneous Petition was submitted to challenge that decision.
Petitioner’s Arguments
The Petitioner's counsel claimed that Krushna Chandra Mahapatra transferred title of the whole suit property to respondent 3 via a registered sale deed dated June 28, 2012, after the ex parte adjudication of the case. Respondent 3 filed an application to intervene in the ongoing judicial proceedings after the sale.
However, Mr. Bose maintained that the vendor, who was merely a lis pendens client, was not required to participate in the judicial procedures under Order IX Rule 13 CPC, as Krushna Chandra Mahapatra, the seller, was already actively pursuing legal action against the CMA. He cited the objection raised by Krushna Chandra Mahapatra, in which he explicitly said that he was really and conscientiously conducting the investigation.
Furthermore, it was seen that Krushna Chandra Mahapatra had previously presented both verbal and written evidence in the case and had concluded his side of the argument. Mr. Bose said that introducing a lis pendens purchaser at this point would merely further extend the legal proceedings needlessly.
Mr. Bose emphasized that there was insufficient evidence to support the assertion that Krushna Chandra Mahapatra and the Plaintiff were cooperating, despite the accusations. Conversely, the records' evidence unequivocally demonstrated that Krushna Chandra Mahapatra was diligently and actively overseeing the legal proceedings.
Therefore, Mr. Bose contended that it was superfluous to include the lis pendens buyer as a legal party, as this would merely complicate the legal processes.
Respondent’s Arguments
Mr. Baug, the counsel for Respondent No. 3, vehemently disagreed with the Petitioner's assertions. According to his submission, the deceased Rama Chandra Mahapatra acquired the disputed property from Anjan Kumar Ghosh under a Repurchase Agreement ,when he was still alive.
Subsequently, on December 26, 2005, Rama Chandra Mahapatra transferred ownership of the property to Krushna Chandra Mahapatra by means of Revenue Service Directive No. 13097. Mr. Baug contended that in Civil Suit No. 1132 of 2009, the Plaintiff-Petitioner had entered an inaccurate address for Krushna Chandra Mahapatra, which led to the failure to serve the summons on him.
It was also stated he was unaware of the ongoing legal proceedings and due to the same he was also not aware about the subsequent ex parte judgement that was issued by the court. Lacking knowledge of the ex parte order, Krushna Chandra Mahapatra transferred ownership of the property in question to Opposite Party No. 3 by means of a Registered Sale Deed (RSD) dated June 28, 2012, and returned possession.
Moreover, Mr. Baug emphasized that Santilata Mahapatra, the sister of the Petitioner and Respondent No. 1, had initiated Civil Suit at the Udala Court of the Honourable Civil Judge (Senior Division) to divide the property situated in that area. In addition, the complaint sought to declare the sale deeds that Rama Chandra Mahapatra had executed on behalf of Krushna Chandra Mahapatra, as well as the following sale deed that Krushna Chandra Mahapatra had executed in favor of Opposite Party No. 3, to be null and void.
In this particular civil matter, the petitioner in issue was named as Defendant No. 5, Krushna Chandra Mahapatra was classified as Defendant No. 7, and Respondent No. 3 was designated as Defendant No. 10. The trial court had concluded that both of the sale deeds are legally sound and and that Respondent No. 3 had received legal title via the sale deed that was completed by Krushna Chandra Mahapatra.
This was the case despite the fact that Defendant No. 10 was set ex parte. The counsel had also contended that Krushna Chandra Mahapatra engaged in complicity with the Plaintiff in the legal proceedings under Order IX Rule 13 CPC, and due to the same reason Respondent No. 3 applied to be included as a party under Order I Rule 10 (2), Order XXII Rule 10, and Section 146 CPC in order to protect his ownership interest in the property in the lawsuit.
Additionally, the counsel had contended that even if he was not involved in the initial litigation, a lis pendens buyer has the right to file a petition under Order IX Rule 13 CPC to invalidate an ex parte judgment issued against his seller. The counsel supported his argument by referencing the case of Raj Kumar v. Sardari Lal and others (2004) 2 SCC 601.
In this case, the Hon'ble Supreme Court determined that a lis pendens transferee, without being officially recorded under Order 22 Rule 10 CPC, has the right to file an application under Order 9 Rule 13 CPC to invalidate a decree issued against their transferor. In the current matter, Mr. Baug highlighted that the transferor, Krushna Chandra Mahapatra, was established as the exclusive party in Civil Suit No. 1132 of 2009.
Hence, in the legal procedures to invalidate the ex parte ruling, Opposite Party No. 3, as the buyer of the property, had a legitimate claim to be included as a party, especially considering the claimed conspiracy between the Plaintiff and Krushna Chandra Mahapatra. As a means of bolstering his case, Mr. Baug used the testimony of Bijay Kumar, who was questioned as the first accused party in the CMA proceedings.
He noted that although Krushna Chandra Mahapatra, the Petitioner in the CMA, raised an objection to the intervention petition of Respondent No. 3, he neglected to question Bijay Kumar and did not establish that he was safeguarding the interests of his vendee, Respondent No. 3. Instead, he just said that he was conscientiously and forthrightly pursuing the CMA.
According to Mr. Baug, this unequivocally demonstrated involvement of the vendor and the Plaintiff in deliberate collaboration. Hence, he reached the conclusion that the trial Court did not make any mistake by pleading Opposite Party No. 3 as a party to the proceedings under Order IX Rule 13 CPC.
Furthermore, Mr. Baug referenced the case of Upendranath Samantasinghar and another v. Bikash Chandra Mohapatra and another (2015 (I) ILR CUT 835), in which the Court, based on the Raj Kumar case, determined that a legal action conducted under Order 9 Rule 9 of the Code would be covered by Section 52 of the Transfer of Property Act and Order 22 Rule 10 CPC.
This decision acknowledged the authority of a representative who claims on behalf of the original party to participate in the proceedings on their behalf. Furthermore, he said that Respondent No. 3 was granted permission to cross-examine the Plaintiff after being impleaded as a party, but he did not provide any further evidence in the case. Mr. Baug argued that the challenged order, issued under Order IX Rule 13 CPC, did not justify any intervention.
Court’s Analysis
The central question addressed in this CMP was whether a lis pendens buyer's petition for intervention in a court action under Order IX Rule 13 CPC to invalidate a decree issued against their seller may be upheld. In the matter of Raj Kumar, the Court cited the well acknowledged legal precedent that a lis pendens buyer has the legal right to initiate a legal action under Order IX Rule 13 CPC in order to contest a decree issued against their transferor.
The current matter included an ex parte order against Krushna Chandra Mahapatra, the individual who transferred the property, who was named as Defendant No.1 in CS No.1132 of 2009, filed by the petitioner. The Court noted that the sale agreement, executed by Krushna Chandra Mahapatra on behalf of Opposite Party No.3, lacked any express mention of the ongoing civil case or the ex parte judgement.
The rationale for the exclusion may be attributed to Krushna Chandra Mahapatra's claim in his petition filed under Order IX Rule 13 CPC that he was not properly summoned to participate in court proceedings. Therefore, the Court mandated that Opposite Party No. 3, acting as the lis pendens buyer, was prohibited from acquiring knowledge regarding CS No. 1132 of 2009 or the ex parte judgement issued in relation to it.
In CS No.57 of 2012, the Court determined that the sale deed signed by Rama Chandra Mahapatra in favor of Krushna Chandra Mahapatra and the subsequent sale deed in favour of Opposite Party No.3 were both legal. This verdict was issued in response to an appeal submitted by Santilata Mahapatra, the vendor's sister.
The Court determined that Opposite Party No.3 had indeed acquired legal possession through these transactions through a meticulous analysis. Moreover, Krushna Chandra Mahapatra acknowledged that the property in issue was acquired by Opposite Party No.3 as a result of the transaction.
As it is, the matter that emerged from CS No.57 of 2012 remains unsolved according to RSA No.103 of 2024. However, the Court observed that the conclusion and legal decision in CS No.57 of 2012, which confirmed the valid title of Opposite Party No.3, remained unmodified and uncorrected.
The Opposite Party No.3 maintained an ongoing interest in the disputed subject area and in addition to this, the Court observed that the submitted information indicated that Krushna Chandra Mahapatra, who filed the challenge under Order IX Rule 13 CPC, was not sufficiently safeguarding the interests of Opposite Party No.3, a buyer who had a valid claim to the property.
Notably, the plaintiff, who was the opposing party in the case under rule IX Rule 13 CPC, contested the decision that included Opposing Party No.3 as a participant in the current court investigations. The petitioner, Opposite Party No.1 in the CMA, struggled to comprehend the unfair disadvantage that arose from the contested verdict, and the Court acknowledged this.
In the final analysis, the Court determined that Opposite Party No.3, who had a substantial interest in the primary matter of the dispute, was a legitimate participant in the legal procedures. The Court was informed by Mr. Baug, who is representing Opposite Party No.3, that the matter has been postponed for further consideration.
The Court concluded that the challenged judgment presented in Annexure-1 was free of any defects after conducting a comprehensive examination. As a result, the Court rejected the CMP on the basis of its insubstantiality, without determining its cost.
