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2009 DIGILAW 361 (KAR)

Narendranath Shetty v. P. S. Rama Rao Pisey

2009-06-04

AJIT J.GUNJAL

body2009
Judgment :- The petitioners are questioning the order passed by the learned trial Judge rejecting their application under Order 1 Rule 10 of the Code of Civil Procedure to get themselves impleaded in a final decree proceeding. Copy of the impugned order is produced at Annexure-A. 2. The undisputed facts relating to this proceedings can be summarized as under: The first respondent herein was the plaintiff in O.S.No.4156/80 on the file of the first Additional City Civil Judge, Bangalore which was filed for partition and separate possession in respect of the suit schedule properties. The first defendant in the suit one P.E.Sadashiva Rao who is no more executed a sale deed on 09.04.1991 in respect of item No.2 of the plaint schedule in favour of the petitioner for consideration of Rs.8.90.000/-, indicating that it is his self-acquired property and put the petitioners in possession. During the pendency of the proceedings, the first defendant i.e., P.E.Sadashiva Rao died and his legal representatives were brought on record. Suffice it to say that the suit was decreed and was confirmed by this Court. As against the said judgments and decrees, the legal heirs of the first defendant i.e., P.E.Sadashiva Rao preferred a Special Leave Petition before the Apex Court in Civil Appeal No.817/02. The Apex Court accepted the appeal in part and modified the judgments and decrees of the trial Court as well as this Court to the extent that the original plaintiff i.e., respondent No.1 was entitled to 11/40th share in the property described as item No.1 and 1/10th share in the property described as item No.2. But however observed that he is not entitled to any share in item No.3 of the schedule. To that extent the judgment and decree which was appealed against, was modified. The petitioners admittedly are the purchasers pendente lite, inasmuch as, they are the purchasers of the property during the pendency of the suit. Indeed, it is also not in dispute that the purchasers, petitioners herein made an application after the conclusion of the proceedings before the Apex Court seeking modification of the order, inasmuch as, item No.2 of the schedule was a self-acquired property of the original defendant No.1, P.E.Sadashiva Rao. Hence the said property was not available for partition. The Apex Court declined to grant permission to file the application. Hence the said property was not available for partition. The Apex Court declined to grant permission to file the application. The plaintiff i.e., respondent No.1 initiated final decree proceedings under Order 20 Rule 18 of the Code of Civil Procedure. In the said proceedings, the petitioners maintained an application under Order 1 Rule 10 of Code of Civil Procedure to get themselves impleaded on the ground that they are proper and necessary parties, inasmuch as, they have purchased item No.2 of the plaint schedule. The said application, as observed earlier, is rejected. 3. Mr.Udaya Holla, learned senior counsel appearing for the petitioner vehemently submits and presses into service provisions of Order 22 Rule 10(a) of the Code of Civil Procedure, inasmuch as, the petitioners are the assignees or the purchasers pendente lite and they are required to be impleaded. He further submits that the Apex Court while disposing of the appeal has observed in the body of the judgment that item No.2 of the schedule is self acquired property of the original defendant No.1 i.e., P.E.Sadashiva Rao. Hence the said property was not available for partition. He further submits that the final decree proceedings are continuation of the original proceedings and the petitioners are necessary and proper parties. With reference to the ruling of the Apex Court he would submit that the learned trial Judge was not justified in rejecting the application for impleading. 4. Mr.Sreevatsa, learned senior counsel appearing for the contesting respondents submits that the petitioners have already filed a suit in OS.No.26430/07 seeking a declaration that the judgment and decree passed in OS.No.4156/80 is not binding on them and also that they have perfected their title pursuant to the sale deed executed by the original defendant No.1 P.E.Sadashiva Rao. He further submits that having regard to the fact that the shares have already been determined, the question of the petitioners being impleaded as parties to the proceedings would not arise, notwithstanding the fact that the final decree proceedings are continuation of the original proceedings. 5. Learned counsel appearing for respondents 1 to 3 and respondent No.4 adopt the arguments of Mr.Sreevatsa, learned senior counsel. 6. I have given my anxious consideration to the submissions made by both the learned senior counsel. 7. Undisputed facts are already narrated. 5. Learned counsel appearing for respondents 1 to 3 and respondent No.4 adopt the arguments of Mr.Sreevatsa, learned senior counsel. 6. I have given my anxious consideration to the submissions made by both the learned senior counsel. 7. Undisputed facts are already narrated. The moot question which falls for consideration in this proceedings is whether a purchaser of the property pendente lite in a suit for partition is required to be impleaded in a final decree proceeding. In this regard, the Apex Court in the case of Khemchand Shankar Choudhary And Another Vs. Vishnu Hari Patil And Others reported in AIR 1983 SC 124 has observed that transferees during the pendency of partition suit can appear in such proceedings and claim equitable partition even though they were not parties to the suit in Civil Court. Indeed, the Apex Court has observed that the application for impleading can be entertained and granted even in a proceedings under Section 54 of the Code of Civil Procedure which, in effect, is initiated after the conclusion of the final decree proceedings. 8. It is useful to extract the observation made by the Apex Court in the aforesaid decision. "6. Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Civil P.C. clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate Court where he is not already brought on record. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate Court where he is not already brought on record. The position of a person on whom any interest had devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final.” (Emphasis supplied) Even if respondent No.1 can ignore the transfer but when a motion is made by the lis pendens transferer to be impleaded as a party, the Court may, in its exercise of jurisdiction add him as a party to prevent multiplicity of suits. Indeed, it is also to be noticed that Order 22 Rule 10 of the Code of Civil Procedure would deal with a procedure in case of assignment before final order in a suit. In the case 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. In the instant case, as has been observed, the final decree proceedings are continuation of the original proceedings, which would necessarily mean that the proceedings are still alive and not concluded. It is also not in dispute that the petitioners have purchased the property during the pendency of the suit way back in the year 1991. Assuming that they are not proper parties they may be impleaded as assignees under Order 22 Rule 10(1) of the Code of Civil Procedure. It is also not in dispute that the petitioners have purchased the property during the pendency of the suit way back in the year 1991. Assuming that they are not proper parties they may be impleaded as assignees under Order 22 Rule 10(1) of the Code of Civil Procedure. Even if an application is filed under Order 1 Rule 10 of the Code of Civil Procedure assuming the application being misconceived, the Court is to ignore the labelling of the application as one under Order 1 Rule 10 and treat the same as one under Order 22 Rule 10(1) of the Code of Civil Procedure. Hence, I am of the view that having regard to the provisions of Order 22 Rule 10 of the Code of Civil Procedure, the petitioners are necessary and proper party and they are entitled to be impleaded in the proceedings. Indeed, it is to be noticed that while considering the application for impleading under Order 1 Rule 10 of Code of Civil Procedure what is required to be taken note of is not whether ultimately the relief could be granted in favour of the applicant. That would be a question which is required to be gone into during the course of enquiry. But at the threshold itself, the application for impleading cannot be rejected. The courts are required to consider whether he is a proper and necessary party. Only to that extent Order 1 Rule 10 of Code of Civil Procedure is required to be looked into. Indeed, it is also to be noticed that a transferee, pendente lite to the extent he has acquired interest from the original defendant is vitally interested in the litigation, whether the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the proceeding. 9. Indeed an effort was made by Mr.Udaya Holla, learned senior counsel to persuade this Court to record a finding, having regard to certain observations made by the Apex Court during the course of the judgment that item No.2 of the plaint schedule was a self acquired property of the original defendant i.e., P.E.Sadashiva Rao. Indeed, such a finding in this proceeding is certainly not warranted and is required to be looked into or decided elsewhere. Indeed, such a finding in this proceeding is certainly not warranted and is required to be looked into or decided elsewhere. It is no doubt true that the petitioners have filed a suit in OS No.26430/07 for certain reliefs but that by itself, the Courts cannot deny the application for impleading, inasmuch as, they would become a necessary and proper party in the Final decree proceedings. It is also to be noticed that a specific defence was taken by the original defendant P.E.Sadashiva Rao that he has sold item No.2 of the plaint schedule in favour of the petitioners. This is another factor which would go in favour of the petitioners to get themselves impleaded. Indeed, the Court is required to exercise the discretion judiciously and the alienee would ordinarily be joined as a party to enable him to protect his interests. 10. It should not be lost sight of the fact that the suit was filed for partition. The court can certainly grant more than one preliminary decree because such a suit must be deemed to be pending till a final decree is actually granted. Therefore, where after a preliminary decree is passed, if an application is made for impleading as a party but their being a dispute as to the exact quantum, the application, in such circumstances, is required to be entertained and dismissal of the said application is not at all warranted. 11. The apex Court in the case of Phoolchand And Another Vs. Gopal Lal reported in AIR 1967 SC 1470 with respect to the preliminary partition decree and the variance of shares has observed thus: "So far as partition suits are concerned, if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed in a decree in itself which would be liable to appeal. However, this can only be done so long as the final decree has not been passed."(Emphasis supplied) Indeed, it is to be noticed that there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree. However, this can only be done so long as the final decree has not been passed."(Emphasis supplied) Indeed, it is to be noticed that there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree. In such circumstances, I am of the view that the application filed by the petitioners could not have been rejected by the learned trial Judge. 12. While dealing with an identical situation in W.P.No.11156/07 disposed of on 13th October 2008, I have observed that indeed as has been stated consistently the scope of an application under Order 1 Rule 10 is not to see whether the applicant is entitled for the ultimate relief but only to see if he is a necessary and proper party. This court in the case of Smt.Ashwathamma Vs. H.M.Vijayaraghava reported in AIR 1999 KAR 21 has also taken the same view. Indeed, that was also a case for partition and separate possession and an effort was made to get themselves impleaded. 13. For the reasons stated above, I am of the view that the learned trial Judge was not justified in rejecting the application. Consequently, the following order is passed: (1) Writ Petition is allowed. (2) The impugned order at Annexure-A is quashed. (3) The Application filed by the petitioner under Order 1 Rule 10 of the Code of Civil Procedure is granted. (4) All questions are left open. Rule is issued and made absolute.