IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 Ex.SA.No. 21 of 2010() ---------------------- AS.55/2008 of SUB COURT, CHERTHALA OS.318/1970 of PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANT IN EX.S.A - APPELLANT IN AS -ADDL.PETITIONERS 2 TO 4 IN E.A: --------------------------------------------------------- 1. PADMINI, W/O.HARIDASAN, RESIDING AT VADAKKE AKATHOOTTU, CHENNAMPALLIPPURAM MURI, PALLIPPURAM VILLAGE, CHERTHALA. 2. AMBILY, D/O. DO. RESIDING IN DO. DO. 3. HARIKUMAR, S/O. DO. IN DO. DO. BY ADV. SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENTS IN EX.S.A - RESPONDENTS IN AS - CR.PETITIONERS IN E.A: -------------------------------------------------------- 1. BALAKRISHNAN NAIR, S/O.SANKARAN NAIR, KUNNATHUSSERIL, PANAVALLI MURI, PALLIPPURAM VILLAGE, CHERTHALA 688 566. 2. DAMODARAN, S/O.KRISHNAN, PARATHITTAYIL FROM KONATHEZHATHU, PANAVALLI MURI, PANAVALLI VILLAGE, CHERTHALA 688 566. ADV. SRI.R.HARIKRISHNAN FOR R1 SRI.N.ASHOK KUMAR FOR R1 THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2011, THE COURT ON 30/03/2011 DELIVERED THE FOLLOWING: ORDER ON I.A.NO.2928/2010 IN EX.S.A.NO.21/2010 DISMISSED. 30.3.2011 SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- Ex.S.A.NO.21 OF 2010 ----------------------------------- Dated this the 30th day of March, 2011 J U D G M E N T The appellants are additional petitioners 2 to 4 in E.A.No.799 of 2003 in E.P.No.793 of 2002 in O.S.No.318 of 1970 on the file of the Principal Munsiff's Court, Cherthala. Predecessor in interest of the appellants, namely, Haridasan had filed the above application E.A.No.799 of 2003 under Order XXI Rule 97 and Section 151 of the Code of Civil Procedure resisting the delivery of suit property to the decree holder/the 1st respondent. Pending enquiry on the application, the petitioner Haridasan having passed away, his legal representatives, the appellants were substituted. The execution court, after enquiry, in which, the appellants and also the 1st respondent/decree holder tendered evidence, dismissed the petition. As against the dismissal of that petition, the appellants herein preferred an appeal as A.S.No.55 of 2008, which, after Ex.S.A.No.21/2010 2 reappraisal of the materials, was turned down by the learned Sub Judge, Cherthala confirming the order of the execution court. Feeling aggrieved, the petitioners have preferred this second appeal. 2. Notice on admission being ordered, the 1st respondent/decree holder, who alone contested the petition before the execution court, entered appearance through counsel. 3. I heard the counsel on both sides. Controversy arising for adjudication in the case lie within a very narrow compass. To appreciate the tenability of the objection raised by the appellants to the delivery of the decree schedule property, reference to the facts of the case, in brief, may be advantageous. The decree schedule property involved, 33.21 ares of land in Survey No.131/3C of Panavalli Village, was, admittedly, outstanding on a mortgage with the 2nd respondent. Two suits for redemption of the mortgage were instituted with the plaintiff in each case claiming equity of redemption disputing the right of Ex.S.A.No.21/2010 3 the other to redeem the property. The 1st respondent herein, who is hereinafter referred to as the 'decree holder' instituted a suit earlier in point of time as O.S.No.318 of 1970. The other suit was instituted by one Sreenivasan, who claimed right over the mortgage property under an assignment deed executed during the pendency of the previous suit. His assignor was stated to be the donee under a gift executed by the mortgagor of the property. Suit filed by the aforesaid Sreenivasan for redemption of the mortgage property was numbered as O.S.No.446 of 1974. After trial, a preliminary decree was passed in O.S.No.446 of 1974 upholding the claim of the plaintiff Sreenivasan to redeem the property on deposit of the mortgage price. Suit filed by the 1st respondent herein as plaintiff, O.S.No.318 of 1970 was dismissed. Haridasan, the predecessor of the appellants, obtained an assignment over the property from Sreenivasan, the decree holder in O.S.No.446 of 1974 by way of a registered sale deed and moved a final decree application after getting leave of the court to do so, and, later, redeemed the property from the mortgagee depositing the mortgage price. Ex.S.A.No.21/2010 4 The 1st respondent had raised objections to the final decree proceedings taken by the assignee Haridasan pointing out that the appeal period was not over and the application moved by him for obtaining copies of the decrees to prefer appeals against the decision in the two suits has not been complied with. Thereafter, the plaintiff in O.S.No.318 of 1970, the 1st respondent herein, preferred two appeals as against the decrees passed in the aforesaid suit and also in O.S.No.446 of 1974. The first appellate court turned down such appeals. However, in the second appeals preferred against the decisions rendered by the first appellate court, this Court reversing the decrees granted by the courts below upheld the claim of equity of redemption of the 1st respondent granting him a decree thereof in his suit, O.S.No.318 of 1970, allowing him to redeem the property. The decree passed in O.S.No.446 of 1974 was reversed and that suit was dismissed. In O.S.No.318 of 1970, declaring the right of the plaintiff, the 1st respondent herein, to redeem the property, the case was remitted to assess the value of improvements payable to the mortgagee – 2nd respondent. The decrees passed by this Ex.S.A.No.21/2010 5 Court, as aforesaid, in the two second appeals, had been assailed before the Apex Court by the plaintiff in O.S.No.446 of 1974 and also the mortgagee, but, they were turned down dismissing the Special Leave Petitions. After remission of the case as aforesaid over the fixation of the value of improvements, still, there were some challenges by way of appeal before the first appellate court twice, but the assessment made by the trial court the second time was confirmed by the appellate court, and it has become final and conclusive. 4. When the 1st respondent herein (the decree holder) filing E.P.No.793 of 2002 in O.S.No.318 of 1970 proceeded with execution of the decree for redeeming the property on deposit of the mortgage price, the predecessor of the present appellants, Haridasan, moved the petition setting forth a pre-delivery obstruction on the basis of the delivery obtained by him from the 2nd respondent mortgagee previously recognising the assignment of title and interest over the property in his favour by the decree holder in O.S.No.446 of 1974 and the final decree passed in that Ex.S.A.No.21/2010 6 suit with notice to the 1st respondent. That obstruction having been turned down by both the courts below, the additional claimants have come up with this second appeal. 5. The main thrust of challenge pressed into service by the learned counsel of the appellants/claimants is that the decree granted in favour of the 1st respondent is not binding on the appellants since their predecessor in interest Haridasan had not been impleaded as an additional respondent despite the 1st respondent having knowledge that an assignment over the property had been made in his favour, and also in view of the final decree passed in O.S.No.446 of 1974 at his instance with notice to the 1st respondent and the delivery of the property pursuant to such decree through court to him. Status of Haridasan as an assignee over the suit property having been brought to the notice of the 1st respondent during the pendency of his suit when the decrees in O.S.No.446 of 1974 and O.S.No.318 of 1970 by the trial court were challenged by the 1st respondent, the assignee Haridasan should have been made a Ex.S.A.No.21/2010 7 party, is the submission of the counsel to contend that the decree passed in favour of the 1st respondent without hearing the assingee Haridasan is not at all binding on him and his successors in interest, the present appellants. To support the proposition canvassed, the learned counsel relied on a number of judicial pronouncements rendered over the devolution of interest during the pendency of the suit within the meaning of Order XXII Rule 10 of the CPC and also the duty cast upon the plaintiff in such situation. If the fact of devolution was known to the plaintiff, a duty is cast upon him to implead person/persons in whose favour interest over the subject matter has devolved by way of an assignment or otherwise pending the suit is the argument advanced. The learned counsel for the appellants has relied on Cherukutty v. Valappu (1987 (1) KLT 565), State of Bihar and Others v. Mohd. Idris Ansari (AIR 1995 SC 1853), Dhurandhar Prasad Singh v. Jai Prakash University and Others ((2001) 6 SCC 534), Raj Kumar v. Sardari Lal and Others ((2004) 2 SCC 601) and Amit Kumar Shaw v. Farida Khatoon (2005 (2) KLT 806 (SC)), in all of which, the Ex.S.A.No.21/2010 8 questions relating to the scope and ambit of impleadment of an assignee under Order XXII Rule 10 of the CPC had been dealt with. The finding entered by the courts below that the transaction in favour of Haridasan, the predecessor of the appellants, was hit by lis pendens is assailed by the counsel contending that the principles of lis pendens are inapplicable to the facts of the case where the 1st respondent had obtained a decree without making the assignee a party after he had notice of the assignment made over the suit property and its delivery pursuant to the decree passed by the court recognising the assignee's title, right and interest over the property. 6. Perusing the records of the case, which have been obtained from the courts below, with reference to the submissions made by the learned counsel for the appellants and also the 1st respondent, I find that the challenge raised to impeach the concurrent decision rendered by the courts below negativing the pre-delivery obstruction raised by the appellants over the decree schedule property proceeded in execution, is Ex.S.A.No.21/2010 9 unworthy of any merit. First and foremost, the question is whether the predecessor of the appellants, Haridasan, the assignee, had obtained any title, right or interest over the schedule property when his claim over the property was based on an assignment taken from one of the parties pending the litigation, and whether any application at his instance would lie under Order XXI Rule 97 of the CPC to obstruct the delivery of the decree schedule property. The decree passed in the case was binding on his assignor, Sreenivasan, is not a matter in dispute. On that solitary ground itself, the application moved by the claimant Haridasan under Order XXI Rule 97 of the CPC as an assignee of Sreenivasan, was not at all entertainable under Order XXI Rule 97 of the CPC. Though the learned counsel for the appellants had advanced arguments to project a case that the styling of the petition under Order XXI Rule 97 of the CPC was an apparent mistake and it was, in fact, an application requiring adjudication as akin to a claim petition under Order XXI Rule 58 of the CPC, submissions made in that regard deserve to be taken note of for its outright rejection since the decree executed is one Ex.S.A.No.21/2010 10 passed in a suit for redemption of a mortgaged property, to which a claim under Order XXI Rule 58 of the CPC is not entertainable. The decisions stated by the learned counsel for the appellants have no relevance to the case involved, and as such, no advertence thereto in particular is called for. 7. Whether the non-impleadment of an assignee of a property covered by litigation would prejudicially affect the rights of the party who had obtained the decree has to be examined with regard to the decision ultimately rendered in the suit, which is binding on the parties thereto. The two suits, O.S.Nos.318 of 1970 and 446 of 1974, both of them for redemption of the same mortgaged property at the instance of rival claimants in the suits, proceeded in trial separately, but, later, as could be seen from Ext.B1 judgment dated 25.1.1978 by the Munsiff Court, Cherthala, and also Ext.B2 judgment rendered in second appeal by this Court, there was a joint trial of the two suits and they had been disposed of by a common judgment. Before the appeal period was over, the plaintiff in one Ex.S.A.No.21/2010 11 of the suits (O.S.No.446 of 1974) in whose favour a decree was granted, had made an assignment of the property in favour of the predecessor of the appellants, and that assignee, after obtaining leave applied for passing a final decree, and, later, got delivery of the property, would no way assist that assignee to contend that the decision ultimately rendered in the two suits is not binding on him. It is for the assignee, if he is interested, to seek permission for getting himself impleaded in the subsequent stages of the suit when the decree, on the basis of which he got an assignment, was challenged by the opposite party as provided by law. There is no merit in the submission made that it is for the opposite party to move for impleading the assignee when he had been given notice of the assignment of the property to a stranger. When two suits, in which common issues are involved, are tried jointly, there is only one decision though decrees have to be drafted separately in the suits. So, whatever decision rendered in O.S.No.446 of 1974 in favour of Sreenivasan by the trial court, which was the basis of the assignment made in favour of the claimant, had been reversed by this Court in second Ex.S.A.No.21/2010 12 appeal, and thereby, it follows that the assignment taken by Haridasan from an incompetent person Sreenivasan, who had no title over the property, was non-est from inception. At one stage of the case, a decree was passed in favour of Sreenivasan, in no way would assist the appellants to set forth any title or right over the suit property when the ultimate decision rendered in the case, which alone is binding and operative on the parties, has negatived the right claimed over the property by Sreenivasan. The finding entered by both the courts below that the claim canvassed by the assignee Haridasan is hit by lis pendens covered by Section 52 of the Transfer of Property Act is unassailable, and the assignee, who obtained a transfer or assignment of the property pendente lite can claim only the status of a representative-in-interest of his transferor, who is bound by the decree passed in the suits. He cannot set forth any independent title or right over the suit property on the basis of the final decree passed on his application, and delivery obtained over the property, on the basis of the preliminary decree passed in the suit in favour of his transferor, the decision of which had Ex.S.A.No.21/2010 13 been annulled by the superior court holding that his transferor had no right over the property. There was no duty cast upon the 1st respondent when he challenged the decrees rendered in the suits O.S.Nos.318 of 1970 and 446 of 1974 by the trial court before the lower appellate court, and, later, before this Court to move for impleadment of the predecessor of the appellants the assignee of Sreenivasan as a party to such appeals, since the transfer or assignment of the property had been made in his favour by one of the parties to the suit pending the litigation. If the transfer or assignment was bona fide, then it is for the assignee to seek permission of the court if he so desired to get himself impleaded as an additional party, and even then, it is for the court to decide whether he should be made an additional party and be given an opportunity of being heard in the case. The assignee may move for such permission or keep himself aloof from the proceedings allowing his transferor/assignor to prosecute or defend the case. But once an adverse decision is rendered against his assignor ultimately by the court, and that decision has become final and conclusive, the Ex.S.A.No.21/2010 14 transferee/assignee, who got an assignment of some interest pending litigation cannot turn around and say that it was incumbent upon the opposite party on knowing of his interest under the assignment pending litigation to provide him an opportunity of being heard by moving for his impleadment as an additional party in the suit, and if that was not done, the decision rendered by the court would not be binding on him. 8. What is discernible from the facts involved in the case is that the assignor of the claimants obtained a decree in his favour by an incorrect decision of the trial court, which was later reversed and corrected by the superior court in appeal. So the decree rendered by the superior court, that alone, could be treated as the decree passed in the suit, which is binding on the parties. No party to a suit or proceedings can claim any right on the basis of any mistake or wrong committed by a court and if any benefit is obtained by any party by such mistake of the court, then, it would be a case calling for restitution in favour of the opposite party, who suffered injury under such act of the court. Ex.S.A.No.21/2010 15 That also being take into account, it has to be stated that the appellants cannot set forth any independent right, title or interest over the property on the basis of the pendente lite assignment taken by their predecessor in interest from Sreenivasan, the plaintiff in O.S.No.446 of 1974. There is no merit in the appeal, and it is dismissed directing both sides to suffer their respective costs. S.S.SATHEESACHANDRAN JUDGE prp Ex.S.A.No.21/2010 16