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2014 DIGILAW 1269 (PNJ)

Sunita Devi v. Pawan Kumar

2014-09-08

INDERJIT SINGH

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JUDGMENT INDERJIT SINGH, J. Petitioner Sunita Devi has filed this revision petition against Pawan Kumar contesting-respondent and Smt.Pushpa Rani Bansal proforma respondent under Article 227 of the Constitution of India for setting aside the impugned order dated 26.10.2013 passed by learned District Judge, Narnaul vide which the application of the applicant-petitioner filed under Order 22 Rule 10 CPC for being substituted as defendant-respondent being assignee/transferee was dismissed. The brief facts of the case as stated in the petition are that shop in dispute was originally owned by Madan Lal adopted son of Smt.Manbhari widow of Mangal. Tirath Ram purchased the same from Sh.Madan Lal vide sale deed dated 14.10.1976. Pawan Kumar filed a suit on 13.02.1990 titled as “Inder Narain and Pawan Kumar vs. Tirathh Ram” claiming declaration that the plaintiffs are owners of shop in dispute. The suit was decreed by learned Sub Judge, Ist Class, Mohindergarh on same day on 13.02.1990. Subsequently, in family settlement, the shop was given to Smt.Pushpa Rani Bansal and a consent decree was passed. On 08.11.2002, Pawan Kumar filed present suit for declaration that he is owner of the shop in dispute on the basis of judgment and decree dated 13.02.1990 claiming that Pushpa Rani Bansal has no concern with the ownership or possession of the shop and further, judgment and decree dated 26.03.1994 passed in the civil suit in favour of the defendant is illegal, based upon fraud and misrepresentation. This suit was dismissed vide judgment and decree dated 30.07.2011. Plaintiff-respondent filed civil appeal, in which status quo regarding possession and alienation of suit property was ordered vide order dated 29.08.2011. However, this order was conveyed to Pushpa Rani Bansal on 12.09.2011. In the meanwhile, Pushpal Rani Bansal has sold the shop in dispute to the applicant Sunita Devi vide sale deed dated 01.09.2011 registered on 02.09.2011. The applicant-petitioner filed application under Order 22 Rule 10 CPC read with Section 151 CPC for being substituted/impleaded as respondent in place of Pushpa Rani Bansal in the appeal on the basis of sale deed. Vide impugned order, learned first appellate Court dismissed the application. Notice of motion was issued to contesting-respondent, who appeared through his counsel and contested the petition. I have heard learned counsel for the parties and have gone through the record. Vide impugned order, learned first appellate Court dismissed the application. Notice of motion was issued to contesting-respondent, who appeared through his counsel and contested the petition. I have heard learned counsel for the parties and have gone through the record. From the impugned order, I find that learned District Judge, Narnaul vide order dated 26.10.2013 dismissed the application mainly on the ground that on 29.08.2011, parties were directed to maintain status quo regarding possession and alienation and sale deed in favour of Sunita Devi is of 01.09.2011 which was registered on 02.09.2011. Learned counsel for the petitioner has cited judgment passed by the Hon'ble Supreme Court in Mulraj vs. Murti Raghunathji Maharaj, 1967 AIR (SC) 1386, in which it is held as under:- “An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well-settled that in such a case the party must have knowledge of the injunction order before it could be penalised for disobeying it. Further it is equally well-settled that the injunction order not being addressed to the court, if the court proceeds in contravention of the injunction order, the proceedings are not a nullity. In the case of a stay order, as it is addressed to the court and prohibits it from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. That in our opinion is the only difference between, an order of injunction to a party and an order of stay to a court. In both cases knowledge of the party concerned or of the court is necessary before the prohibition takes effect. Take the case where a stay order has been passed but it is never brought to the notice of the court, and the court carries on proceedings ignorance thereof. It can hardly be said that the court has lost jurisdiction because of some order of which has no knowledge. This to our mind clearly follows from the words of Order 41, Rule 5 of the Code of Civil Procedure which clearly lays down that mere filling of an appeal does not operate as stay of proceedings in execution, but the appellate court has the power to stay the execution. This to our mind clearly follows from the words of Order 41, Rule 5 of the Code of Civil Procedure which clearly lays down that mere filling of an appeal does not operate as stay of proceedings in execution, but the appellate court has the power to stay the execution. Obviously when the appellate court orders the stay of execution the order can have affect only when it is made known to the executing court. We cannot agree that an order staying execution is similar to an order allowing an appeal and quashing execution proceedings. In the case where the execution 'Proceeding. is quashed, the order takes effect immediately and there is nothing left to execute. But where a stay order is passed, execution still stands and can go on unless the court executing the decree has knowledge of the stay order. It is only when the executing court has knowledge of the stay order that the court must stay its hands and anything it does thereafter would be a nullity so long as the stay order is in force. I have gone through the above-cited judgment and the same fully applies to the facts in the present case. Learned District Judge, Narnaul has wrongly not relied upon this cited judgment which was cited by learned counsel. Learned counsel for the petitioner has further cited judgment passed by the Hon'ble Supreme Court in Thomson Press (India) Ltd. vs. Nanak Builders & Investors P. Ltd. & Ors., JT 2013 (3) SC 289, in which it is held that breach of injunction does not render the transfer ineffective. Though party committing breach may incur liability but sale remains valid, subject to directions issued by competent Court against the vendor. It is also held that impleadment of pendente lite transferee; application under Order 1 Rule 10 CPC dismissed by High Court. It is further held that application was rightly dismissed by the High Court. However, appellant's prayer could be allowed by invoking provisions of Order 22 Rule 10 CPC. I have gone through this cited judgment also and the same fully applies to the facts in the present case. Keeping in view the fact that property has been purchased by the vendee during the pendency, sale itself will not become void. The sale deed will remain valid but it will be subject to the determination of dispute by the Court. Keeping in view the fact that property has been purchased by the vendee during the pendency, sale itself will not become void. The sale deed will remain valid but it will be subject to the determination of dispute by the Court. Therefore, present petitioner is to be substituted/impleaded in place of Pushpa Rani Bansal under Order 22 Rule 10 CPC. In view of the above discussion, I find that the impugned order dated 26.10.2013 passed by learned District Judge, Narnaul is not correct and not as per law and the same is set aside. Finding merit in the present petition, the same is allowed. Application under Order 22 Rule 10 CPC filed by the petitioner is allowed.