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2025 DIGILAW 1152 (KER)

Luka, S/o. Varghese v. Thankachan, S/o. Pathorose

2025-05-09

K.BABU

body2025
ORDER : The challenge in this Civil Revision Petition filed under Section 115 of the Code of Civil Procedure is to the common order dated 05.01.2012 passed by the Munisff’s Court, Thodupuzha in four interlocutory applications (I.As.) in O.S.No.118 of 2017. 2. The revision petitioner is the plaintiff in the suit. Respondent Nos. 1 and 2, who are strangers to the suit, filed the interlocutory applications in the trial Court. Respondent Nos. 3 and 4 are defendant Nos. 1 and 2 in the suit. 3. The plaintiff filed the Original Suit for a decree declaring his title over the plaint property and also for a permanent prohibitory injunction against defendant Nos.1 and 2. The suit was decreed in favour of the plaintiff. After passing the decree, the defendants alienated the plaint schedule property to respondent Nos. 1 and 2. The plaintiff filed execution petition inter alia seeking delivery of a portion of the plaint schedule property. Respondent Nos. 1 and 2 (the petitioners in the IAs) filed I.A.No. 798/2011, a petition under Order IX Rule 13 CPC seeking to set aside the ex parte decree, I.A.No.805/2011, a petition under Section 5 of the Limitation Act, I.A.No.806/2011, a petition seeking to implead them as additional defendant Nos. 3 and 4 in the suit and IA No.1058/2011 seeking stay of all further proceedings in E.P.No.8/2010, the execution petition filed by the plaintiff to execute the ex parte decree in O.S.No.118 of 2007. 4. Respondent Nos. 1 and 2 pleaded in the interlocutory applications that they purchased the property on 16.03.2009 from respondent Nos. 5 and 6 who had purchased the property from defendant Nos. 1 and 2 in the year 2007. 5. In the trial Court, the defendants remained ex parte. The Court decreed the suit on 13.08.2008. Respondent Nos. 1 and 2 were working in the United Arab Emirates. They were not aware of the ex parte decree. They got information regarding the decree only on 24.05.2011, the day on which the Amin appointed by the Court visited the property. 6. According to respondent Nos.1 and 2, they are the only affected persons by way of the decree. 7. The petitioner (the plaintiff) resisted the applications, contending that respondent Nos. 1 and 2 are residents near to the plaint property. They had information regarding the decree. The defendants transferred the property to respondent Nos. 6. According to respondent Nos.1 and 2, they are the only affected persons by way of the decree. 7. The petitioner (the plaintiff) resisted the applications, contending that respondent Nos. 1 and 2 are residents near to the plaint property. They had information regarding the decree. The defendants transferred the property to respondent Nos. 1 and 2 without mentioning the existence of the suit or any encumbrance over the property. Respondent Nos. 1 and 2 are the present owners of the property. 8. The trial Court considered the rival contentions and allowed the applications. 9. I have heard the learned Senior Counsel Sri. K.K. Chandran Pillai appearing for the petitioner and Sri. John Vipin, the learned counsel appearing for respondent Nos. 1 and 2. 10. The learned Senior Counsel submitted that respondent Nos. 1 and 2 are not pendente lite transferees as they purchased the property long after the decree. The learned Senior Counsel would further submit that the attempt of respondent Nos. 1 and 2 is to defeat the right over the property crystallized in favour of the petitioner. The learned Senior Counsel also contended that the applications are highly belated. 11. The learned Senior Counsel submitted that the ratio in Raj Kumar v. Sardari Lal [ (2004) 2 SCC 601 ], the decision relied on by the trial Court, does not apply to the facts of the case as the petition considered in Rajkumar was filed during the pendency of the suit. 12. The learned counsel for respondent Nos. 1 and 2 submitted that the decree passed against the defendants in the suit is available for execution against the subsequent transferees and assignees, and it does not make any difference whether such transfer or assignment has taken place after the passing of the decree or before the passing of the decree. 13. The competence of respondents Nos. 1 and 2 to institute a petition under Order IX Rule 13 CPC and the maintainability of the application seeking impleadment as additional defendants at a highly belated stage is under challenge. 14. It is profitable to extract Section 146 of the CPC. Section 146 reads thus:- “ 146. 13. The competence of respondents Nos. 1 and 2 to institute a petition under Order IX Rule 13 CPC and the maintainability of the application seeking impleadment as additional defendants at a highly belated stage is under challenge. 14. It is profitable to extract Section 146 of the CPC. Section 146 reads thus:- “ 146. Proceedings by or against representatives.- Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.” 15. Section 146 lays down that where any proceeding is taken or application is made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him unless otherwise provided by the Code or any other law for the time being in force. Section 146 was introduced in the Code of 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 beneficial provision should be construed literally and so as to advance justice and not in a restricted or technical sense. 16. To apply Section 146 CPC, two conditions must be fulfilled- (i) the person taking a proceeding or making an application must be claiming under a person who could have taken such proceeding or made an application; and (ii) the Code or any other law for the time being in force should not have provided otherwise. [vide: Jugal Kishore v. Raw Cotton Co. Ltd [ AIR 1955 SC 376 ]. 17. In Chothi Theyyathan v. John Thomas [ AIR 1997 Ker. 249 ], this Court held that procedure that can be taken against any person could be taken against any person claiming through or under him. 18. In Raj Kumar v. Sardari Lal [ (2004) 2 SCC 601 ], the Supreme Court considered the question whether an application is maintainable at the hands of assignee to set aside an ex parte decree and to be brought on the party array. The Supreme Court held that an assignee may be impleaded and may also be allowed to continue proceedings, which his predecessor-in-interest may have done. The Supreme Court held that an assignee may be impleaded and may also be allowed to continue proceedings, which his predecessor-in-interest may have done. The Supreme Court further held that an application to set aside an ex parte decree would certainly lie at the instance of such an assignee. The Supreme Court observed that as the decree can be executed against an assignee, it would be legally untenable to deny the assignee the right to come to the party array and prosecute the contentions in accordance with law. It is true that bringing on lis pendens transferee on record is in the discretion of the Court. This Court in Bhaskaran v. Vijayaraghavan [2005 KHC 236] observed that an application to set aside an ex parte decree lies at the instance of an assignee. This Court also observed that the original party having parted with his rights might have failed to impugn the ex parte decree and it would bind the assignee, and therefore, it may cause irreparable injury to the assignee. 18. In view of the above, this Court comes to the conclusion that respondent Nos. 1 and 2 are entitled to file application under Order IX Rule 13 CPC to set aside the ex parte decree and to file applications to bring them on record under Order XXII Rule 10 CPC, as the assignees are to be regarded as the representatives of the defendants within the meaning of Section 47 of the CPC. I have gone through the impugned order. The learned trial Judge considered the reasons highlighted by respondent Nos. 1 and 2 for the delay in instituting the applications. The learned trial Judge has exercised his discretion in a sound manner. I find no reasons to interfere with those findings. The impugned common order stands confirmed. The Civil Revision Petition lacks merits and is accordingly dismissed.