RAJ KUMAR

SARDARILAL

JANUARY 20, 2004

[R.C. LAHOTI AND ASHOK BHAN, JJ.]

Code a/Civil Procedure, 1908-0rder 9 Rule 13, Order 22 Rule JO and Section 146-Transfer of property pending suit thereon-Suit decreed ex- C parte against transferor-Setting aside of decree not by transferor but by a person who did not come or was not brought on record promptly- Maintainability of-Held: Such a person being a lis pen dens transferee, though not brought on record under Order 22 Rule JO is entitled to move application under Order 9 Rule 13 to set aside the decree passed against his transferordefendant in suit-Word 'he under Order 9 Rule 13 is not to be construed D rigidly and restrictively so as to exclude person stepping into the shoes of transferor-defendant, from moving an application for setting aside the exparte decree especially in view of Section 146.

Maxim:

E Ut lite pendente nihil innovetur-Expresses doctrine of /is pendens- Transfer of Property Act. 1882 Section 52.

During pendency of the suit relating to an immovable property, respondent No.4 purchased the suit property from respondent No.2 and 3-defenclants by registered sale deed. Respondent No.4 was not aware of F the pendency of the suit. Suit was decreed ex-parte against respondent No.2 and 3. Respondent No.4 filed an application under Order 9 Rule 13 CPC for setting aside the decree, prayed under Order 22 Ruic l 0 for being brought on record and also for condoning the delay in filing the application. Trial Court condoned the delay and allowed the application G holding that sufficient cause for setting aside the decree was made out.

Appellant filed civil revision contending that an application under Order 9 Rule 13 can be filed by defendant only. High Court dismissed the same.

Hence the present appeal.

Appellant contended that an application under Order 9 Rule 13 CPC If 838

RAJ KUMAR v. SARDARI LAL 839

can be filed by defendant only; and that respondent No.4 is a transferee A pendente lite and having not taken steps promptly under Order 22 Rule

10 for being brought on record, he is bound by the result of the suit and must suffer the consequences of an adverse decree passed against his vendors who have not chosen to challenge the ex-pa rte decree.

Dismissing the appeal, the Court

HELD: I.I. The doctrine of /is pendens expressed in the maxim '111 file pendente nihil innovetur-during a litigation nothing new should be introduced, is statutorily incorporated in Section 52 of the Transfer of Property Act, 1882. 1841-H; 842-AI

1.2. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successfl!I plaintiff of the fruits of

the decree. In case of an assignment, creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 CPC confers a discretion on the Court hearing the suit to grant leave for the person in D or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a /is pendens transferee on record is not as of right but in the discretion of the Court. A /is pendens transferee from the defendant, though not arrayed as a party in the suit, is still a person claiming under the defendant and remains bound by the decree. This principle of law is recognized in different perspective by Rule 16 of Order E 21 stating transfer or assignment inter vivas or by operation of law made by the plaintiff-decree-holder. The transferee may apply for execution of the decree of the Court which passed it and the decree will be available for execution in the same manner and subject to the same conditions as if the application were made by the decree-holder. Furthermore, the F explanation to Rule 16 states that the operation of Section 146 CPC is allowed to prevail independent of Order 21 Rule 16 CPC.

1842-A-C; 842-G-H; 843-AI

1.3. The transferee pendente li1e is treated in the eye of law as a representative-in-interest of the judgment-debtor and held bound by the G decree passed against the judgment debtor though neither the defendant has chosen to bring the transferee on record by apprising his opponent and the Court of the transfer made by him nor the transferee has chosen to come on record by taking recourse to Order 22 Rule 10 CPC. Further a decree passed against the defendant is available for execution against the transferee or assignee of the defendant-judgment-debtor and it does H

A 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 without notice or leave of the Court. [843-B-C]

1.4. The person who is liable to be proceeded against in execution of the decree or can file an appeal against in decree, though not a party to B the suit or decree, does have locus s/andi to move an application for setting aside an ex-parte decree passed against the person in whose shoes he has stepped in. In the expression employed in Rule 13 of Order 9 CPC that 'in any case in which a decree is passed ex-parte against a defendant, he may apply for an order to set it aside' the word 'he' cannot be construed C with such rigidity and so restrictively as to exclude the person, who has stepped into the shoes of the defendant, from moving an application for setting aside the ex-pa rte decree especially in the presence of Section 146 of the CPC. [844-F-G[

2. In the instant case respondent No 4-/is pendens transferee, though D not brought on record under Order 22 Rule JO CPC is entitled to move an application under Order 9 Rule 13 to set aside a decree passed against his transferor-the defendant in the suit. As to the availability of sufficient cause for setting aside the decree under Order 9 Rule 13 CPC and for condoning the delay under Section 5 of Limitation Act, the finding in favour of respondent No.4 is factual and well reasoned. Therefore, the E attack against the locus slandi of respondent No.4 to maintain the

application under Order 9 Rule 13 CPC fails. [845-C-D[

Surjil Singh and Ors. v. Harbans Singh and Ors., [ 1995[ 6 SCC 50, distinguished.

Smt. Saila Bala Dassi v. Sm. Nirmala Sundari Dassi und Anr., [1958[ SCR 12.87; Jugalkishore Sarafv. Mis. Raw Collon Co. Lid., [1955[ l SCR 1369 and Sardar Govindrao Mahadik and Anr. v. Devi Sahai and Ors., [1982[ I SCC 237, referred to.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 400 of 2004.

From the Judgment and Order dated 28.2.2002 of the Punjab and Haryana High Court in C.R. Nos. 340 I of 200 I.

S.N. Mishra, Mohd. Kazim Sher and N.S. Bish! for the Appellant. -

Manoj Swarup, Uday Gupta, Sanjay Chowdhary and S. Chandrashekhar, A for the Respondents.

The Judgment of the Court was delivered by

R.C. LAHOTI, J. Leave granted.

During the pendency of a civil suit relating to an immovable property, respondent No.4 herein purchased the suit property from the defendants (respondent Nos. 2 & 3) by a registered deed of sale dated 24.9.1995. The respondent No.4, it appears, was not aware of the pendency of the suit; rather

the vendors stated in the deed of sale that the property was not a subject matter of any litigation. On 27 .11.1995, the suit was decreed ex-parte against C the defendants (respondent nos. 2 & 3). On 30.5.1998, the respondent No.4 filed an application under Order 9 Rule 13 of the CPC seeking setting aside of the decree and also making a prayer under Order 22 Rule 1 O of the CPC for being brought on record. Prayer was also made for condoning the delay in filling the application inasmuch as the ex-parte decree was not in the D knowledge of the respondent No.4. The trial Court has allowed the application condoning the delay in filling the same and held that a sufficient cause for setting aside the decree within the meaning of Order 9 Rule 13 of the CPC .... was made out. The appellant preferred a civil revision in the High Court which has been dismissed.

The only plea raised and vehemently urged by Shri S.N. Mishra, the learned senior counsel for the appellant before this Court, as was done before

the trial Court and the High Court too, is that an application under Order 9 Rule 13 of the CPC can be filed only by a defendant and by no one else. The respondent No.4 is a transferee pendente lite and in the absence of his having promptly taken steps under Order 22 Rule 10 of the CPC for being brought F on record, he remains bound by the result of the suit. He must suffer the consequences of an adverse decree passed against his vendors who have not chosen to lay any challenge to the ex-parte decree, submitted the learned counsel.

We have heard Shri S.N. Mishra the learned senior counsel for the G appellant and Shri Manoj Swarup, learned counsel for the respondent No.4.

We are satisfied that there is no merit in the appeal and the same is liable to be dismissed.

The doctrine of /is pendens expressed in the maxim '111 lite pendent H

A nihil innovetur' (during a litigation nothing new should be introduced) has been statutorily incorporated in Section 52 of the Transfer of Property Act

1882. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successful plaintiff of the fruits of the decree. The transferee pendente lite is treated in the eye of law as a representative-in-interest of the judgment-debtor and held bound by the decree B passed against the judgment-debtor though neither the defendant has chosen to bring the transferee on record by apprising his opponent and the Court of the transfer made by him nor the transferee has chosen to come on record by taking recourse to Order 22 Rule I 0 of the CPC. In case of an assignment creation or devolution of any interest during the pendency of any suit, Order C 22 Rule I 0 of the CPC confers a discretion on the Court hearing the suit to grant leave for the person in our upon whom such interest has come to vest or devolve to be brought on record. Bringing of a /is pendens transferee on record is not as of right but in the discretion of the Court. Though not brought on record the /is pe11dens transferee remains bound by the decree.

D The present case has a peculiar feature. The transfer took place during the pendency of the suit but the decree passed ex-parte in the suit is sought to be set aside not by the defendant on record but by a person who did not come or was not brought on record promptly and hence apparently appears to be a third party. However, as we have already stated hereinabove, the E person would be a representative-in interest of the defendantjudgment-debtr.

The. solution lies in Section 146 of the Code of Civil Procedure, 1908.

It provides -

"146. Proceedings by or against representatives.-Save as otherwise provided by this Court 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 application may be made by or against any person claiming under him."

A !is pendens transferee from the defendant, though. not arrayed as a G party in the suit, is still a person claiming under the defendant. The same principle of law is recognized in a different perspective by Rule 16 of Order 21 of the CPC which speaks of transfer or assignment inter vivas or by operation of law made by the plaintiff-decree-holder. The transferee may apply for execution of the decree of the Court which passed it and the decree will be available for execution in the same manner and subject to the same H conditions as ifthe application were made by the decree-holder. It is interesting

to note that a provision like Section 146 of the CPC was cot be found in the A preceding Code and was for the first time incorporated in the CPC of 1908.

In Order 21 Rule 16 also an explanation was inserted through amendment made by Act No. 104 of 1976 w.e.f. 1.2.1977 where by the operation of Section 146 of CPC was allowed to prevail independent of Order 21 Rule 16

CPC.

A decree passed against the defendant is available for execution against the transferee or assignee of the defendant-judgment-debtor 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 without notice or leave of the Court.

The law laid down by a four-Judges Bench of this Court in Smt. Sai/a Bala Dassi v. Sm. Nirmala Sundari Dassi and Anr., [1958) SCR 1287, is apt for resolving the issue arising for decision herein. A tansferee f property from defendant during the pendency of the suit sought himself to be brought

on record at the stage of appeal. The High Court dismissed the application D as it was pressed only by reference to Order 22 Rule 10 of the CPC and it was conceded by the applicant that, not being a person who had obtained a transfer pending appeal, he was not covered within the scope of Order 22 Rule 10. In an appeal preferred by such transferee this Court upheld the view of the High Court that a transferee prior to the filing of the appeal could not be brought on record in appeal by reference to Order 22 Rule I 0 of the CPC. E However, the Court held that an appeal is a proceeding for the purpose of Section 146 and further the expression "claiming under" is wide enough to include cases of devolution and assignment mentioned in Order 22 Rule I 0.

Whoever is entitled to be but has not been brought on record under Order 22 Rule I 0 in a pending suit or proceeding would be entitled to prefer an appeal F against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code. A person having acquired an interest in suit property during the pendency of the suit and seeking to be brought on reco.d at the stage of the appeal can do so by reference to sectimi 146 of the CPC which provision being a beneficent provision should be construed liberally and so as to advance justice and not G in a restricted or technical sense. Their Lordships held that being a purchaser pendente lite, a person will be bound by the proceedings taken by the successful party in execution of decree and justice requires that such purchaser should be given an opportunity to protect his rights.

A In Sm. Sal/a Bala Dassi case (supra) an earlier decision of this Court in Jugalkishore Sarafv. Mis. Raw Co/Ion Co. Ltd., [1955) l SCR 1369 was followed. It was a cse where during the pendency of a suit for recovery of a debt from the defendant the plaintiff in that suit had transferred to a third person all the book and other debts. This Court held that the position of the transferor vis-a-vis the transferee is nothing more than that of a benamidar B for the latter and when the decree is passed for the recovery of that debt it is the latter who is the real owner of the decree. When the transferee becomes the owner of the decree immediately on its passing, he must. in relation to the decree, be also regarded as person claiming under the transferor. The transferee is entitled under Section 146 to make an application for execution C which the original decree-holder could do.

The executing Court can apply its mind to the simple equitable principle which operates to transfer the beneficent interest in the after-acquired decree under Section 146. As the assignee from the plaintiff of the debt which was the entire subject matter of the suit the transferee was entitled to be brought D on record under Order 22 Rule I 0 and must, therefore, be also regarded as a representative of the plaintiff within the meaning of Section 47 of the CPC.

In Sardar Govindrao Mahadik and Anr. v. Devi Sahai and Ors., [ 1982) I SCC 237, this held that an application not falling under Order 22 Rule I 0 of the CPC stricto sensu could yet be held to be maintainable by having E recourse to Section 146 of the CPC.

The appellant cannot dispute that the decree though passed against the respondent Nos. 2 and 3 could be executed even against the respondent No.4, he being a /is pend.ens transferee though not having been joined in the suit F as a party. Such a person can prefer an appeal being a person aggrieved.

Clearly the person who is liable to be proceeded against in execution of the decree, or can tile an appeal against in decree, though not a party to the suit - or .decree does have locus standi to move an application for setting aside an ex-parte decree, passed against the person in whose shoes he has stepped in.

In the expression employed in Rule 13 of Order 9 of the CPC that 'in any G case in which a decree is passed ex-parte against a defendant he may apply for an order to set it aside' the word 'he' cannot be construed with such rigidity and so restrictively as to exclude the person who has stepped into the shoes of the defendant, from moving an application for setting aside the exparte decree especially in the presence of Section 146 of the CPC.

H Incidentally we may observe that in Surjit Singh and Ors. v. Harbans

Singh and Ors., [ 1995] 6 sec 50, the assignees pendente lite were refused A by this Court to be brought on record as they had purchased the suit property after the passing of the preliminary decree and in clear defiance of the restrant order passed by the Court injuncting any alienatioQ/assignment. It was a case of exercising discretion not to grant leave under Order 22 Rule 10 of the CPC, in the circumstance of the case, as in the opinion of this court permitting impleadment and recognizing the alienation/assignment would amount to defeating the ends of justice and the prevalent public policy. That case is clearly distinguishable.

We hold that a /is pendens transferee, though not brought on record under Order 22 Rule I 0 of the CPC, is entitled to move an application under C Order 9 rule 13 to set aside a decree passed against his transferor-the defendant in the suit.

As to the availability of sufficient cause for setting aside the decree within the meaning of Order 9 Rule 13 of the CPC and for condoning the delay under Section 5 of the Limitation Act, the finding in favour of respondent D No.4 is purely one of fact and well reasoned.

The attack against the locus slandi of respondent No. 4 to maintain the application under Order 9 Rule 13 of the CPC fails and so does the appeal.

The appeal is dismissed with no order as to the costs.

N.J.

Appeal dismissed.