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2010 DIGILAW 305 (PNJ)

Kartari Devi v. Mahender Singh

2010-01-13

VINOD K.SHARMA

body2010
Judgment VINOD K. SHARMA, J. 1. The petitioner has invoked the revisional jurisdiction of this court under Article 227 of the Constitution of India to challenge the order dated 31.7.2007 passed by the learned Addl. District Judge, Faridabad, on an application for condonation of delay in filling the appeal. 2. The respondents/ transferee pendente lite on the basis of right of assignee filed an appeal against the judgment and decree passed in favour of the petitioner. The appeal was filed along with an application for condonation of delay, on the ground that on 10.1.2008, Bailiff of the Court, along with some other persons, had come to the shop of the respondents, and asked the respondents to demolish the shop in question, and to vacate the shop. The respondent No.1 showed the sale deed executed by Satbir singh of the suit property in his favour, and also the previous sale deed executed by Raju son of Mahender Singh son of Dale Ram in favour of satbir Sinbgh son of Hari Singh, as also the original sale deed executed by virender Singh, Kanwar Sikngh, Tarif Singh, Ashok Kumar, sons of Smt. Shakuntla, Indira and Krishna, daughters, and Smt. Vidya Devi widow of sant Singh son of Dul Ram in favour of Raju son of Mahender Singh. She claimed herself to be owner in possession of the shop in question, and also pleaded that she had raised construction after spending more than one lac rupees, therefore, she was a bona fide purchaser for consideration. 3. The case of the respondent No.1 was that he came to the Court and enquired about the judgment and decree passed, and thereafter immediately filed an appeal along with application for condonation of delay. 4. The application was contested, wherein averments made were denied. The learned lower appellate Court came to the conclusion, that there was no dispute about the fact, that subsequent purchaser could file appeal if the vendee had right to file the appeal. 5. The learned lower appellate Court condoned the delay, by accepting the plea, that the appellant was not in know of the judgment and decree, and that he had filed the appeal immediately on coming to know about the judgment and decree passed by the learned trial Court. 6. Mr. 5. The learned lower appellate Court condoned the delay, by accepting the plea, that the appellant was not in know of the judgment and decree, and that he had filed the appeal immediately on coming to know about the judgment and decree passed by the learned trial Court. 6. Mr. K. B. Sharma, learned counsel appearing on behalf of the petitioner challenged the impugned order by raising a contention, that the respondent No.1 had no right to file the appeal without leave of the Court, as he was not party to the civil suit, nor was made party in pursuance to the purchase during the pendency of the civil suit. 7. In support of this contention the learned counsel for the petitioner placed reliance on the judgment of the Honble Supreme Court in the case of Sanjay Verma Vs. Manik Roy and Ors.2007 (1) RCR (Civil)408, wherein the Honble Supreme Court has been pleased to lay down as under :- "in Bibi Zubaida Khatoons case (supra) on which learned counsel for respondents had placed reliance in fact goes against the stand of the respondents. Though a casual reading of paragraph 9 supports the stand taken by the respondents, it is to be noted that the factual position was entirely different. In fact a cross suit has been filed in the suit in that case. Respondents being transferees pendente lite without leave of the court cannot as of right seek impleadment in the suit which was in the instant case pending for a very long time. In fact in para 10 of the judgment this Court has held that there is absolutely no rule that the transferee pendente lite without leave of the Court should in all cases contest the pending suit. In Sarvinder Singh V/s. Dalip Singh and Ors. (1996 (5) SCC 539) it was observed in para 6 as follows: "6. Sec.52 of the Transfer of property Act envisages that: "during the pendency in any court having authority within the limits of India. . . In Sarvinder Singh V/s. Dalip Singh and Ors. (1996 (5) SCC 539) it was observed in para 6 as follows: "6. Sec.52 of the Transfer of property Act envisages that: "during the pendency in any court having authority within the limits of India. . . of any suit or proceeding which is not collusive and 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 the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. " 8. It would, therefore, be clear that the defendants in the suit were prohibited by operation of Sec.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 obviously would be hit by the doctrine of lis pendens by operation of Sec.52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit. "" 9. The learned counsel for the petitioner also placed reliance on the judgment of this Court in the case of Jarnail Singh Vs. Devinder kumar and Ors.1991 P. L. J.242 to contend that the purchaser pendente lite is bound by the decree passed by the Court and cannot enforce his transfer under Sec.52 of the Transfer of Property Act. The transferee on being impleaded as party also cannot claim any right to contest the suit by filing a separate written statement, as he can only watch his interest along with other defendants from whom he purchases the suit land. 10. On consideration, I find no force in the contention raised by the learned counsel for the petitioner. In the present case it is not the case of the respondent No.1, that he is entitled to contest suit on a new ground than one taken by the predecessor-in-interest of the respondents. 10. On consideration, I find no force in the contention raised by the learned counsel for the petitioner. In the present case it is not the case of the respondent No.1, that he is entitled to contest suit on a new ground than one taken by the predecessor-in-interest of the respondents. The claim is that assignee is entitled to file an appeal by stepping in to the shoes of his vendor, therefore, the judgment of this Court in the case of Jarnail Singh vs. Devinder Kumar and Ors. ( supra) cannot advance the case of the petitioner to challenge an order, vide which delay in filing the appeal has been condoned by the learned lower appellate Court. 11. Similarly, the judgment of the Honble Supreme Court in the case of Sanjay Verma Vs. Manik Roy and Ors. (supra) is not on the point in dispute, as rightly pointed out by the learned senior counsel appearing on behalf of the respondents. The Constitution Bench of the Honble Supreme court in the case of Sm. Saila Bala Dass, Appellant Vs. Smt. Nirmala sundari Dassi and another, Respondents AIR 1958 Supreme Court 394 has clearly laid down that assignee of the property during the pendency of the suit has a right to file an appeal. The Constitutional Bench of the honble Supreme Court in the case of Sm. Saila Bala Dass, Appellant Vs. Smt. Nirmala Sundari Dassi and another, Respondents (supra) has been pleased to lay down as under :- " (7) It is contended on behalf of the appellant that her application is maintainable under O.22, R.10 of the Civil Procedure Code, because Suit No.158 of 1935 must be considered to have been pending until the decree therein was drawn up which was in 1954, and the transfer in her favour had been made prior thereto on May 12, 1952. The decision in Lakshan Chunder Dey v. Sm. Nikunjamani Dassi 27 Cal WN 755 : AIR 1924 Cal 188) (B) is relied on, in support of this position. But it is contended for the first respondent that even if Suit No.158 of 1935 is considered as pending when the transfer in favour of the appellant was made, that would not affect the result, as no application had been made by her to be brought on record in the original court during the pendency of the suit. But it is contended for the first respondent that even if Suit No.158 of 1935 is considered as pending when the transfer in favour of the appellant was made, that would not affect the result, as no application had been made by her to be brought on record in the original court during the pendency of the suit. Nor could the application made to the appellate Court be sustained under O.22, R.10, as the transfer in favour of the appellant was made prior to the filing of that appeal and not during its pendency. This contention appears to be well-founded; but that, however, does not conclude the matter. In our opinion, the application filed by the appellant falls within S.146 of the Civil Procedure Code, and she is entitled to be brought on record under that section. Sec.146 provides that save as otherwise provided by the Code, any proceeding which can be taken by a person may also be taken by any person claiming under him. It has been held in sitharamaswami V/s. Lakshmi Narasimha ILR 41 Mad.510 : (AIR 1919 Mad 755 (2) that an appeal is a proceeding for the purpose of this section, and that further the expression "claiming under" is wide enough to include cases of devolution and assignment mentioned in O.22, R.10. This decision was quoted with approval by this Court in Jugalkishore Saraf V/s. Raw Cotton Co. , Ltd.1955-1 SCR 1369 : (S)AIR 1955 SC 376) (D), wherein it was held that a transferee of a debt on which a suit was pending was entitled to execute the decree which was subsequently passed therein, under S.146 of the Civil Procedure Code as a person claiming under the decree-holder, even though an application for execution by him would not lie under O.21, R.16, and it was further observed that the words "save as otherwise provided " only barred proceedings, which would be obnoxious to some provision of the Code. It would follow from the above authorities that whoever is entitled to be but has not been brought oil record under O.22, R.10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code, and that accordingly the appellant as an assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal against the judgment of P. B. Mukharji J. (8) It is next contended that S.146 authorises only the initiation of any proceeding, and that though it would have been competent to the appellant to have preferred an appeal against the judoment of P. B. Mukharji j. she not having done so was not entitled to be brought on record as an appellant to continue the appeal preferred by the second respondent. We are not disposed to construe S.146 narrowly in the manner contended for by counsel for the first respondent. That section was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. It has been held by a Full Bench of the Madras High Court in Muthiah Chettiar V/s. Oovinddoss krishnadass I. L. R.44 Mad.919.1293; AIR 1921 Mad 599) (E) that the assignee of a part of a decree is entitled to continue an execution application filed by the transferor- decree-holder. Vide also Moidin Kutty V/s. Doraiswami ILR (1952) Mad (622): (AIR 1952 Mad 51) (F ). The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims, and the petition of the appellant to be brought on record as an appellant in Appeal No.152 of 1955 must be held to be main. tainable under S.146. (9) It remains to consider whether, on the merits, there should be an order in favour of the appellant. Of that, we have no doubt whatsoever. The proceedings in which she seeks to intervene arise in execution of a mortgage decree. tainable under S.146. (9) It remains to consider whether, on the merits, there should be an order in favour of the appellant. Of that, we have no doubt whatsoever. The proceedings in which she seeks to intervene arise in execution of a mortgage decree. She has purchased the properties comprised in the decree for Rs.60,000 under a covenant that they are free from encumbrances. And after her purchase, the first respondent has started proceedings for sale of the properties, nearly 18 years after the decree had been passed. The appellant maintains that the execution proceedings are barred by limitation, and desires to be heard on that question. It is true that p. B. Mukharji J. has rejected this contention, but a reading of his judgment shows-and that is what he himself observes- that there are substantial questions of law calling for decision. Even apart from the plea of limitation, there is also a question as to the amount payable in discharge and satisfaction of the decree obtained by the first respondent in Suit No.158 of 1935. Both the respondents claim that they have settled it at Rs.17,670. But it is stated for the appellant that under the decree which is sought to be executed the amount recoverable for principal and interest will not exceed Rs.6,000. In the affidavit of Sanjit Kumar Ghose dated December 20, 1956, filed on behalf of the first respondent, particulars are given as to how the sum of Rs.17,670 was made up. It will be seen therefrom that a sum of Rs.7,200 is claimed for interest up to March 8, 1956, calculating it not at the rate provided in the final decree but at the contract rate. Then a sum of Rs.5,000 is included as for costs incurred by the mortgagee in suits other than Suit No.158 of 1935 and in proceedings connected therewith. The appellant contends that the properties in her hands could,under no circumstances, be made liable for this amount. A sum of rs.1,750 is agreed to be paid for costs in the sale reference, in the proceedings before P. B. Mukharji J. and in Appeal No.152 of 1955. The appellant contends that the properties in her hands could,under no circumstances, be made liable for this amount. A sum of rs.1,750 is agreed to be paid for costs in the sale reference, in the proceedings before P. B. Mukharji J. and in Appeal No.152 of 1955. Asks the appellant, where is the settlement in this, and how can it bind me It is obvious that there are several substantial questions arising for determination in which the appellant as purchaser of the properties is vitally interested, and indeed is the only person interested. As a purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that she would be given an opportunity to protest her rights. " 12. The learned lower appellate Court, therefore, was right in holding, that there could no dispute that the appeal filed by the respondents was competent. No ground is made out to interfere with the findings recorded by the learned lower appellate Court in condoning the delay, as the averment made in the application made out sufficient cause for condoning the delay. 13. Consequently, this revision petition is dismissed. 14. It is made clear that the respondent No.1, would be entitled to contest the appeal on the pleas raised by his predecessor-in-interest in trial court and will not be entitled to raise any new plea, or seek any right to file written statement or right to lead evidence.