1 C.A.NO 8038/2009. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. CIVIL APPLICATION NO 8038 OF 2009. IN FIRST APPEAL NO. 666 OF 2004. 1. Sau Chandrakala Shantilal Gaikwad Age 47 years, occup. Agriculturist , R/o Nathnagar, A/p Pathardi, Ta. Pathardi, Dist. Ahmednagar 2 Shri Narayan S/o shankar Jadhav, Age 60 years, occup. Agriculturist, R/o Shankarnagar, Nagar Road, A/p Pathardi, Ta. Pathardi, Dist. Ahmednagar 3 Sudhakar S/o Janardhan Chane,Age 55 years, occup. Agricultrist, R/o A/p Kambi Ta. Shevgaon, District Ahmednagar ... Applicants. (Proposed party) V E R S U S Rajendra S/o Vithal Argade,Age 40 years,occup. Agril R/o Manikdaundi Road, Pathardi, Ta. Pathardi Dist. Ahmadnagar Power Attorney Holder. 1. Shri Vitthal S/o Ganpat Argade,Age 65 years,Occup. Agril. 2 Popat S/o Ganpat Argade,Age 60 years occup.Agril. 2 Both r/o Manikdaundi Road,At post Pathardi,ta. Pathardi, District Ahmednagar (Ori. Appellants/ Defendants.) 3. Prashant S/o Nivruthi Khedkar,Age 35 years, occup. Business. 4. Sow Kiranbai W/o Nivruthi Khedkar,Age 57 years occup. Household, Both R/o Manisha Co- operative Houseing Society Navin Pandit Colony, Sharanpur Road,Nashik Dist. Nashik. (Ori. Respondents/ Plaintiffs) ------------------------------------------ Mr.A.K.Gugale,Advocate for the applicants. Mr. K.N.Lokhande,Advocate holding for B.V.Wagh, for respondent Nos.1 and 2. Mr.A.N.Nagargoje, Advocate for respondent Nos.3 & 4 ------------------------------------------ CORAM : A.V. Nirgude, J DATE : 27 th August,2009. PER COURT : Through the present application the purchasers of suit property (pendente lite) are seeking their introduction as appellants to this appeal. The facts leading to this application are as under- 3 C.A.NO 8038/2009. 1) The respondents/plaintiffs filed the suit for specific performance against the present appellants. The trial Court decreed the suit. While passing the decree, the trial court injuncted the present appellants not to alienate the suit property to any third party besides, of course, directing him to execute the sale deed in favour of the respondents/defendants. The present appellants filed this appeal in March,2003, but, did not obtain any order to stay the effect of impugned judgment and decree. Thus, the judgment and decree remained in force against the present appellants. Despite this, the present appellants executed the sale deed in favour of the present applicants on 15th November, 2003 and put them in possession also. 2) On the other hand, the respondents/plaintiffs took up execution proceeding in January,2004 having realized that the present applicants had purchased the suit property, they added them as judgment debtors. The present applicants, as judgment debtor took up several defences including that based on principle of lis pendens. But, on facts all Courts held against them. They lost up to the Supreme Court. This appeal, on the other hand, is still pending and the appellants are apparently pursuing the appeal. The present applicants make the present application mainly on the basis of Order 22 Rule 10 of the Civil Procedure Code. They are trying to contend that they are assignee of the suit property pending litigation and since the present appellants had lost their interest in the suit property, it would be beneficial, if they represent the appellants. It is also argued that during pendancy of the appeal, the appellants are likely to lose interest in the 4 litigation and there is also possibility of collusion between the appellants and respondents. So, the applicants' presence before this court as appellants, is necessary. 3) In order to substantiate this argument, the learned advocate appearing for the applicants placed reliance on the judgment of Supreme Court in the case AmitKumar Shaw and another Vs. Farida Khatoon and another ( AIR 2005 Supreme Court 2209). The facts of the reported case are somewhat similar to the facts of this case. There was a second appeal pending before Calcutta High Court. It was arising from a suit between a lessee and an encroacher. The encroacher set up title by adverse possession. During the pendancy of the appeal the lessee assigned their interest in favour of a third party. The third party sought their inclusion in the appeal as replacement of their vendors. The learned Judge of Calcutta High Court rejected their application, but Supreme Court allowed their appeal, and on the basis of Order 22 Rule 10 of C.P.C. and Section 52 of the Transfer of Property Act, the Supreme Court held that principles of lis pendens would apply to the facts of that case. The supreme Court also expressed apprehension that - A transferee pendente lite to the extent he has acquired interest from the 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 suit. He may collude with the plaintiff. Hence, though plaintiff is in no obligation to make lis pendens transferee a party; under Order 22 Rule 10, an alienee pendente lite may be joined as party. 5 C.A.NO 8038/2009. 4. The learned advocate appearing on behalf of the applicants also placed reliance on the judgment of the Privy Council in the case Brij Indar Singh Vs. Lala Kanshi Ram and others (AIR 1917 Privy Council). He argued that since the respondents here inducted the applicants as judgment debtors in execution proceeding, such judgment debtors would remain party to the suit at all stages. The reliance on this judgment is not proper, because in the execution proceeding and the question involved between the parties was completely alien to the question that exists between the appellant and the respondent in this appeal. Besides that dispute is completely adjudicated. 5. The learned advocate appearing for respondents argued and pointed out basic factual differences in the present case and the case of Amitkumar cited supra before the Supreme Court. He pointed out that the appellant was injuncted from alienating his interest to third party and such order was and is in force. He said this factual difference would completely washout the applicants' argument. In support of this submission he placed reliance on the judgment of the Supreme Court in the case Surjit Singh and others Vs. Harbans Singh and others (1995) 6 Supreme Court cases,50. The facts of this case also were quite similar to the facts of the present case. One of the parties in a partition suit, in which preliminary decree was passed, despite of an injunction order, alienated the decree in his favour. The said assignment was effected by means of a registered deed. It was clearly in defiance of the restraint order the alienation was made. The transferee then made an application to become a party to the proceeding. But the Supreme court refused to do so. The 6 Supreme Court held - In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained but it was presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right to treat the alienation/assignment as having not taken place at all for its purposes. 6. In view of the findings of the Supreme Court, which probably is the last word of the subject discussed before me, I have no other option, but to reject the application. The application stands rejected. ( A.V.Nirgude, J) MTK/8038 OF 2009. 7 C.A.NO 8038/2009. OK