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2007 DIGILAW 1393 (PAT)

Dharm Shila Devi v. Ramesh Chandra Tewari

2007-08-22

ANWAR AHMAD, BARIN GHOSH

body2007
Judgment Barin Ghosh and Anwar Ahmad JJ. 1. Respondents No. 1 and 2 instituted a suit seeking declaration that the properties, being the subject matter of the suit, are joint family properties and also partition by metes and bounds of such properties amongst the co-sharers to the extent of their share. Bhagmani Tewari was defendant no. 7 in the said suit. She contested the suit and contended that one of the properties, being the subject matter of the suit, is a self-acquired property of her husband, late Shri Rajpati Tewari. This contention was not accepted by the trial court, who by the decree dated 15th April, 1997 declared that the said property too is a joint family property and directed partition thereof in metes and bounds in accordance with the share of the parties to the suit as had been declared by the decree. Bhagmani Tewari, thereupon sold the said property to Raghubansh Singh on 2nd September, 1997. While doing so, she held out that she, on receipt of the said property by way of gift from her husband, became the sole owner thereof. Thereupon, on 2nd December, 1997, an appeal was preferred against the said decree dated 15th of April, 1997. This appeal was preferred by Bhagmani Tewari as appellant No. 1 and also by Raghubansh Singh as appellant no. 2. Inasmuch as the appeal was preferred after expiry of the time to file appeal, an application for condonation of delay in preferring the appeal was also filed. The delay in preferring the appeal was condoned by a judgment and order dated 10th of September, 1998. On that date, the application filed by Raghubansh Singh, being I.A. No. 7343 of 1997, seeking leave to prefer an appeal against the decree dated 15th of April, 1997 was taken up for consideration and the same was rejected. Against the said order dated 10th of September, 1998 rejecting the said application seeking leave to prefer an appeal, as was filed by Raghubansh Singh, the present appeal has been filed. 2. Having regard to the fact that the original appellant purchased the property subsequent to the decree, it cannot be said that there was any reason for the original appellant to be aggrieved by the decree and as such the prayer of the original appellant for leave to prefer appeal was thoroughly misconceived. 3. However, the question is. 2. Having regard to the fact that the original appellant purchased the property subsequent to the decree, it cannot be said that there was any reason for the original appellant to be aggrieved by the decree and as such the prayer of the original appellant for leave to prefer appeal was thoroughly misconceived. 3. However, the question is. when it was brought to the notice of the Court that the subject matter of the appeal is only that property, which has been purchased by the original appellant and which has been decreed in the manner as above, whether it was necessary for the court to exercise discretion to grant leave to the original appellant to pursue the appeal? 4. It is true that the original appellant purchased the property in question after the decree was passed, which largely affected the title of the vendor of the original appellant as was purported to be transferred to the original appellant, however, in order to perfect the title of the vendor, the vendor did prefer an appeal and perfected the same by obtaining an order condoning the delay in preferring the appeal. At the time, when the application of the original appellant was being considered, a perfectly valid appeal preferred by the vendor of the appellant was pending consideration before the court. In such situation, was it not necessary for the court to use discretion to allow the appellant to pursue the appeal? 5. Order XXII Rule 10 of the Code of Civil Procedure specifically grants discretion to the court to permit a person, who has acquired interest in the subject matter of the suit during the pendency of the suit, to pursue the suit. The original appellant by his application had brought to the notice of the court that, by reason of purchase by him, the right, title and interest of Bhagmani Tewari in the property, being the subject matter of the appeal, has devolved upon him. It was urged by or on behalf of respondents No. 1 and 2 that inasmuch as the purchase was made after the decree was passed and before the appeal was preferred, the devolution, if any, did not take place during the pendency of the suit as provided in Order XXII Rule 10 of the Code. 6. Appeal is a continuation of the original lis. Admittedly, the devolution took place after institution of the suit. 6. Appeal is a continuation of the original lis. Admittedly, the devolution took place after institution of the suit. It is true that after the decree was passed, devolution took place, when no lis was pending, but subsequently an appeal was preferred and the same was perfected by obtaining an order condoning the delay in preferring the appeal. In law the lis in between the decree and the order condoning the delay in preferring the appeal remained in abeyance. In such view of the matter, it must be deemed, that the devolution did take place during the pendency of the lis. 7. It was contended by or on behalf of respondents No. 1 and 2 that the court would not grant indulgence to a person who has acted in contravention of the provisions contained in Section 52 of the Transfer of Property Act. It was submitted that no permission, of the court was obtained when the transfer was effected and accordingly, the transferee is not entitled to be impleaded as a party to the suit. 8. The fact remains that at the time when the devolution, by way of purchase, took place, in point of fact, no litigation was pending in any court and accordingly, there was no court which could be approached for the purpose of obtaining permission to transfer. 9. In the case of Bibi Zubaida Khatoon vs. Nabi Hassan Saheb, reported in AIR 2004 SC 173 , the transfer took place while the suit was pending and no decision had been rendered in the suit. Be that as it may, in that case the Honble Supreme Court, while considering the provisions contained in Section 52 of the Transfer of Property Act, did not consider the provisions contained in Order XXII Rule 10 of the Code. It based its judgment on the reason given by the courts below that the transfer was aimed at delaying the suit. Fortunately for us, the Honble Supreme Court in the case of Amit Kumar Shaw vs. Farida Khatoon, reported in AIR 2005 SC 2209 , considered the provisions contained in Section 52 of the Transfer of Property Act as well as Order XXII Rule 10 of the Code. In that case, as would be evident from paragraph 4 of the judgment, as reported, the transfer took place during the pendency of the suit and without permission of the court. In that case, as would be evident from paragraph 4 of the judgment, as reported, the transfer took place during the pendency of the suit and without permission of the court. The Honble Supreme Court found as a fact that the entire subject matter of the suit had been transferred to the transferees, who wanted to obtain permission to defend the appeals which were then pending against their vendors. In the instant case, though the appeal is by the vendor of the original appellant, but in the appeal, which is a continuation of the original suit, also, the vendor of the original vendor will be defending the claim of the respondents No. 1 and 2, which succeeded in the first round before the trial court. The Honble Supreme Court, in that case, ultimately held that transferee pendente lite can be added as a party if his interest in the subject matter of the suit is substantial and not just peripheral. The Court observed that a transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, and when the transfer is of the entire interest of the defendant, the latter having no more interest in the property may not properly defend the suit, he may collude with the plaintiff and hence, though the plaintiff is under no obligation to make a lis pendens transferee a party; under Order XXII Rule 10 an alienee pendente lite may be joined as party. The Court pointed out that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest and he is entitled to be impleaded in the suit or other proceedings where the transferor pendente lite is made a party to the litigation and is entitled to be heard in the matter on the merits of the case. 10. 10. Further Section 52 of the Transfer of Property Act debars recognition of transfer of the property, being the subject matter of the suit, if the transfer has been made without the authority of the Court, before whom the suit is pending, and, accordingly, declares that the transferee of a transfer not authorised by Court is neither necessary, nor proper party to the suit and as such cannot be impleaded in the suit, while Order XXII Rule 10 of the Code deals with the procedure in case of assignment before final order in suit and authorises the Court to grant leave to the person, upon whom interest has devolved during the pendency of the suit, to continue with the suit and thereby to represent the interest of the transferee in the suit, but not to make him a party to the suit. 11. In those circumstances, we feel that while rejecting the prayer for leave to prefer an appeal, having noted that the original appellant is the transferee pendente lite, the first appellate court should have granted leave to the original appellant to pursue the appeal. 12. In Amit Kumar Shaw (supra) the application was made for substitution of the alienee. The Court ultimately granted permission to the alienee to contest the matter on merit and that is exactly what has been provided for in Order XXII Rule 10 of the Code. 13. The last but the main important question in the instant case is whether the present appeal is maintainable or not. 14. Learned counsel for respondents 1 and 2 submitted that rejection of an application seeking leave to pursue an appeal is not a judgment within the meaning of Clause 10 of the Letters Patent of this Court and, accordingly, the present letters patent appeal is not maintainable. 15. Learned counsel cited a judgment of the Honble Supreme Court rendered in the case of Employer in relation to Management of Central Mine Planning and Design Institute Ltd. vs. Union of India, reported in AIR 2001 SC 883 . It was submitted that in this judgment the Honble Supreme Court has categorised three kinds of pronouncements which could be judgments. It was submitted that the pronouncement refusing to permit an alienee pendente lite to pursue the appeal is not one of those pronouncements. 16. It was submitted that in this judgment the Honble Supreme Court has categorised three kinds of pronouncements which could be judgments. It was submitted that the pronouncement refusing to permit an alienee pendente lite to pursue the appeal is not one of those pronouncements. 16. The third category of pronouncements which are deemed to be judgments in terms of the said decision of the Honble Supreme Court are intermediary or inter locutory judgments. The Supreme Court has held in the said judgment that in the said category, all orders referred to in clauses (a) to (w) of Order XLIII Rule 1 of the Code shall fall. Admittedly, Order XLIII Rule 1(1) provides that an appeal shall lie against an order refusing to give leave under Order XXII Rule 10 of the Code. 17. In those circumstances, we would allow the appeal, set aside the order under appeal and permit the appellant to pursue the appeal on its merit in the same manner the Honble Supreme Court granted leave in the case of Amit Kumar Shaw (supra).