CR No.1446 of 1996 -1- ******* IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1446 of 1996 Decided on February 04, 2011. Gurdev Singh and another --Appellants Vs. Amarjit Singh and others --Respondents A N D RSA No.970 of 1996 Decided on February 04, 2011. Gurdev Singh and another --Appellants Vs. Amarjit Singh and others --Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr. Avnish Mittal, Advocate, for the petitioners/appellants in both the cases. Mr. S.C.Chhabra,Advocate, for respondent No.1 in both the cases. Rakesh Kumar Jain, J, This order shall dispose of two cases i.e. Civil Revision No.1446 of 1996 titled as `Gurdev Singh another vs. Amarjit Singh and others' and RSA No.970 of 1996 titled as `Gurdev Singh another vs. Amarjit Singh and others'. In brief, one Atma Singh was owner of the property in dispute. CR No.1446 of 1996 -2- ******* He had two wives, namely, Mohinder Kaur and Nand Kaur. Nand Kaur died issueless, whereas Mohinder Kaur had a son namely, Gurcharan Singh, who was married to one Harbeer Kaur and had two children, namely, Amarjit Singh and Amarjit Kaur. Amarjit Singh filed a suit through his mother Harbeer Kaur as his General Power of Attorney by impleading Nand Kaur and his sister Amarjit Kaur as defendants, seeking a decree for declaration to the effect that he is the owner in possession to the extent of ¼th share, measuring 233 kanals 5 marlas and mutation No. 1109 dated 18.4.1961 is illegal, null and void. It was alleged that Atma Singh was the owner in possession of 1476 bighas 17 biswas of land as per jamabandi for the year 1957-58, out of which he had sold 238 bighas 5 biswas of land. Said Atma Singh had also executed a Will dated 03.10.1960 in favour of Amarjit Singh and died in the year 1960 itself. After his death, his property was mutated in favour of his widow Nand Kaur despite the Will in favour of the plaintiff. Consequently, he filed the present suit for declaration claiming his right of ownership over the land in dispute to the extent of 1/4th share and also challenged the mutation dated 18.4.1961 purported to have been sanctioned in favour of Nand Kaur. During the pendency of the suit, Nand Kaur suffered a decree dated 13.8.1992 in favour of the present petitioners/appellants Gurdev Singh and Harbans Singh sons of Amar Singh, who are alleged to be her nephews from her parents' side and died issueless in May, 1993. After the death of Nand Kaur, an application under Order 22 Rule 4 of Code of Civil Procedure, 1908 (for short, CPC) was filed at the instance of Harbeer Kaur and Amarjit Kaur which was allowed on 13.1.1994 by the learned Trial Court. The present petitioners/appellants also filed an application under Order 1 Rule 10 of the CPC to be impleaded as parties on the ground that they have a share in the property of said Nand Kaur, which is claimed by the plaintiff Amarjit Singh but that application was dismissed vide order dated 13.1.1994. Operative part of the said order reads as under:-. “The applicants have received the disputed property admittedly during the pendency of the suit. The legal heirs of the deceased Nand Kaur had already been substituted CR No.1446 of 1996 -3- ******* on the record. The applicants are neither necessary nor proper parties without whose presence case can be decided because they are bound by rules of Lis Pendens. Therefore, the application of the applicants is dismissed”. Despite the aforesaid order, the petitioners/appellants filed an application under Order 22 Rule 10 of CPC claiming their right of assignment during the pendency of the suit but the said application was dismissed on 20.7.1994 and on the same day, the learned trial Court had decreed the suit of the plaintiff on the basis of compromise Ex. CX which was arrived at between the plaintiff and legal heirs of Nand Kaur, who are none-else than the mother and sister of the plaintiff. The petitioners herein filed two appeals, one under Section 96 of CPC against the decree of the learned Trial Court and the other under Order 41 Rule 1 (L) of CPC against the order dismissing application filed under Order 22 Rule 10 CPC. Both the appeals were dismissed by the learned First Appellate Court vide its judgment and decree dated 08.12.1995, which led to the filing of RSA No.970 of 1996 against the judgment and decree and Civil Revision No.1446 of 1996 against the order vide which the application under Order 22 Rule 10 of CPC was dismissed. Both the appeal as well as the revision were admitted and clubbed together for the purpose of final hearing. Mr. Avnish Mittal, learned counsel for the petitioners in Civil Revision No.1446 of 1996 and for the appellants in RSA No.970 of 1996 has requested this Court to first take up the revision because if the application under Order 22 Rule 10 of CPC filed by the petitioners finds favour with this Court, then the judgment and decree passed by the learned Courts below have to be formally set aside and the matter has to be remanded back to the learned Trial Court to decide the case after taking into consideration the case having been set up by the petitioners on the strength of their being in possession on the basis of consent decree dated 13.08.1992 purported to have been suffered by Nand Kaur in their favour. Hence, Civil Revision No.1446 of 1996 is first taken up and heard. CR No.1446 of 1996 -4- ******* Learned counsel for the petitioners has vehemently argued that the learned Courts below have dismissed the application only on the ground that the right had accrued to the petitioners during the pendency of the suit, therefore, it is hit by the principle of lis pendens enshrined under Section 52 of the Transfer of Property Act,1882 (for short, the Act of 1882). It is, however, submitted that the principle of lis pendens would not apply in a case where the right has been transferred by way of a decree which is collusive in nature . It is submitted that Order 22 Rule 10 of CPC is an exception to the principle of lis pendens because it provides that if any transfer of property is effected during the pendency of the suit, then assignee would have a right to be heard in that suit. In support of his submission, learned counsel has placed reliance upon two judgments i.e. Baijanti Bai Vs. Prago and others, AIR 1990 Madhya Pradesh 370 and Jagdish Chander & another Vs. Om Piari & others , 2008 (4) R.C.R.(Civil) 56. In reply, learned counsel for the respondents has vehemently argued that once the order passed on an application filed under Order 22 Rule 4 of CPC and the order passed on another application filed under Order 1 Rule 10 of CPC remained unchallenged, the application filed under Order 22 Rule 10 of CPC has rightly been dismissed as it could not have been allowed. I have heard both learned counsel for the parties and perused the record with their able assistance. The facts are not much in dispute as after the death of Nand Kaur, Harbeer Kaur, Amarjit Kaur and Amarjit Singh are allowed to be impleaded as her legal heirs only for the purpose of the suit, although the suit is filed by Amarjit Singh through her mother Harbeer Kaur, being his General Power of Attorney and the application filed under Order 1 Rule 10 CPC by the petitioners to implead them as parties on the ground that Nand Kaur had suffered a decree in their favour on 13.08.1992 was dismissed on 13.01.1994 and these orders passed on the application filed under Order 22 Rule 4 of CPC and Order 1 Rule 10 of CPC remained unchallenged. The question is, thus, whether application filed under Order 22 Rule 10 of CPC before the decision of the suit, which has actually been decided on the basis of a compromise (Ex.CX) entered into by CR No.1446 of 1996 -5- ******* mother and sister of the plaintiff, could not have been dismissed on the ground of lis pendens. Section 52 of the Act of 1882 provides an exception that lis pendens would not apply if the proceedings in the suit are collusive and Order 22 Rule 10 of CPC provides that a person, upon whom some interest in the property in dispute is devolved during the pendency of the suit, can continue with the suit with the leave of the Court, which is in fact an exception to the principle of lis pendens. The Division Bench of this Court in the case of Laiq Ram Vs. Mithan Lal etc., 1959 PLR 8 held that an assignee can be brought on record only to continue the suit or appeal but not after the same has been decided or disposed of by a consent decree or after contest. It was further held that when an interest has come or devolved on a person during the pendency of the suit or appeal, then he is bound by the decision even if he is not brought on the record or even if he is not a party to the suit or appeal by name. Provisions of Order 22 Rule 10 of CPC do not compel the assignee or party to a suit or appeal to make an application during the pendency thereof because the provision is merely of enabling character. Even if no application is made, the suit or appeal will be continued as heretofore and will be decided between the parties on the record, but the decision will bind the assignee on whom interest in the subject-matter in the litigation has devolved during the pendency of the suit. It is also held that it cannot be gainsaid that an assignee so circumstanced should promptly take advantage of this statutory provision, but if he does not do so, then he does so on his own peril and at his own risk. In the case of Bakhtawar Singh and others Vs. Nirmal Singh and others, AIR 1973 (P&H) 448, it was held by this Court that pendente lite transferee's application cannot be rejected on the basis that principle of lis pendens would apply to such case. On the contrary, Order 22 Rule 10 enables such transferee to become party though it did not compel him to be one, therefore, the application must be granted unless there is exceptional ground for its rejection. It was also held that the assumption that if the petitioners were allowed to be added as party, further complications would arise as they might raise some other pleas, is also incorrect because no complication can arise on impleading a person having right to the property during the pendency of the suit because he cannot raise any defence CR No.1446 of 1996 -6- ******* not open to his transferror and would be bound by all orders passed till then. In the case of Baijanti Bai (supra), it was held that it is the requirement of justice that the persons, on whom the rights have devolved during the pendency of the suit, should be granted an opportunity to protect their rights and interest and allowed to take recourse of law because it would be inequitable to allow a party to snatch the property from the hands of purchaser pendente lite on the basis of the admission or compromise made by the transferor subsequent to the date of transfer by sale, stating that he has no right or interest and the defendant is the only owner. The Court had also referred to Order 23 Rule 3A of CPC in this regard which provides a bar to the suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. In a recent judgment of this Court rendered in the case of Jagdish Chander and another (supra), this issue has been threadbare discussed that in a case where a civil suit with regard to ownership and possession is pending in the Court, the vendee cannot be impleaded as a party under Order 1 Rule 10 of CPC, but he can be allowed to defend the suit under Order 22 Rule 10 of CPC by stepping into the shoes of the party assigning his rights in the property to him. Thus, the sum and substance of the decisions of the various Courts is that the assignee of the rights during the pendency of the suit has a right to be impleaded as a party by stepping into the shoes of his assignor otherwise he is bound by the decision, whether he is before the Court or not. Thus, the finding recorded by the learned Courts below that the petitioners cannot be impleaded as parties under Order 22 Rule 10 of CPC and have a right to raise their voice during the execution is patently illegal and cannot be sustained. Now since this Court has taken the view that the orders passed by the learned Courts below on an application filed under Order 22 Rule 10 of CPC by the petitioners are illegal, then what is the effect on the judgment and decree from which the present Regular Second Appeal has arisen. To my mind, once the application filed under Order 22 Rule 10 of CPC is allowed, the judgment and decree rendered in favour of the plaintiff deserves to be set aside and the case is required to be remitted back to the learned Trial Court to hear the assignee/petitioners on whom the right in the property has devolved by CR No.1446 of 1996 -7- ******* virtue of the decree suffered by Nand Kaur and then decide the suit afresh. Hence, the CR No.1446 of 1996 is hereby allowed and the orders passed by the Courts below on application filed under Order 22 Rule 10 of CPC are set aside. Consequently, RSA No.970 of 1996 is also allowed and the judgment and decree of the Courts below are aside and the matter is remanded back to the learned Trial Court to decide the suit afresh from the stage where the petitioners had filed an application under Order 22 Rule 10 of CPC. The parties to the dispute are directed to appear before the learned Trial Court on 28.02.2011 and the Registry is directed to send the record back forthwith. In the facts and circumstances of the case, the parties shall bear their own costs. February 04, 2011 (Rakesh Kumar Jain) vinod* Judge