Sou Ramu Baloba Kanpile (Since ... vs Damodar Baloba Kanpile And Ors
2022 Latest Caselaw 8511 Bom

                                        10-WP-4211-2016.docx

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CIVIL APPELLATE JURISDICTION

              WRIT PETITION NO.4211 OF 2016

Ramu Baloba Kanpile and Ors.            ..... Applicants/Petitioners
    Vs.
Damodar Baloba Kanpile and Ors.         ....Respondents

                                 ......

Ms. Janhavee Joshi i/by Mr. Sanjay S. Gawde for the
Applicants/Petitioners.
Mr. Siddharth S. Wakankar for Respondent Nos.1 to 4, 6, 6a to
6e, and 8, 7a to 7d and 7f.

                      CORAM: SANDEEP K. SHINDE, J.

RESERVED ON : AUGUST 26, 2022 PRONOUNCED ON: AUGUST 29, 2022.

P.C.

1. Question, for consideration is whether after passing

the preliminary decree in the suit for partition, transferees of the

Suit Property (Part), during the pendency of the appeal, are the

parties necessary, to enable the Court to effectively and

completely adjudicate upon and settle all the questions in the

Appeal ?

2. Petitioners' suit for partition was partly decreed by

the judgment dated 28th April, 2006. Defendants in the said suit

presented the Regular Civil Appeal No.616 of 2006 in the Court

of District Judge, Pune. Pending appeal, original defendants vide

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sale deed dated 24th September, 2008 sold and transferred

portion of the suit property to the third party. Whereupon

Petitioners/Decree-holders moved an application under Order 6

Rule 17 read with Order 1 Rule 10 of the Code of Civil Procedure,

1908 to implead the transferees as party respondents and

further sought declaration that sale deed executed were illegal

and not binding on them. The said application was rejected by

the learned Appellate Court on the ground that subsequent

purchase being governed by doctrine of lis-pendens, such

purchasers were not necessary and proper parties for effective

decision in the appeal. Feeling aggrieved by that order, this

Petition is preferred.

3. Heard learned counsel for the Parties.

4. Learned counsel for the Petitioners in supports of her

petition, relied on two judgments/orders, of this Court in the case

of Yogesh v. Keshav [2014(5)Mh.L.J.53] and in Munaf

Qadarbhai Memon v. Mohd. Umar Aminuddin Ansari and

Ors. in Writ Petition No.7446 of 2016. In the case of Yogesh

(Supra), Petitioner-applicant moved an application to join

himself as plaintiff in the suit, which he had purchased pending

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suit from the original plaintiffs, by registered sale deed. The Trial

Court declined to implead him as plaintiff on the ground that

transfer during the pendency of the suit was hit by principle of

lis-pendens incorporated under Section 52 of the Transfer of

Property Act, 1882. In the back-ground of this fact, it was held

that merely because transfer during the pendency of the suit

was hit by principle of lis-pendens that cannot operate as bar for

the Court to exercise power under Order 1 Rule 10(2) of the

Code of Civil Procedure, 1908 to permit subsequent purchaser

for being added as plaintiff. In the case of Munaf Memon

(Supra), application for impleadment of third party being

transferee of the suit property pending appeal, was rejected by

the learned District Judge in view of the provisions of Section 52

of the Transfer of Property Act, 1882. The learned Judge of this

Court has held in paragraph 5 as under;

"5. Since the respondent no.1 has sold the property in favour of the third party and the appeal filed by the petitioner against the impugned decree is already admitted, in my view, the learned trial judge ought to have allowed the said application for impleadment below Exhibit 19 on the ground that the impleadment of such party would be necessary for the purpose of disposal of the said appeal preferred by the petitioner effectively."

. Learned counsel strongly relied on both the judgments in

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support of the Petition to contend that impleadment of

transferees/purchasers, Mrs. Poonam Vikas Gaikwad and Ms.

Ashwini Gaikwad is necessary for complete and effective

adjudication and settlement of disputes in the subject First

Appeal. The submissions were opposed by the learned counsel

for the Respondents. He relied on the judgment of this Court in

the case of Sahebu Dharmu Shinde (Since Deceased) v.

Jagannath Mithu Shinde in Writ Petition No.11143 of 2017

wherein the learned Judge of this Court has held that "the Suit

being for partition and as the Petitioner's share in the joint

family properties can be adjusted in the remaining properties, it

is not going to necessarily affect either the interest of the

Petitioner or that of the Proposed Purchasers, as such, held,

impleadment of the transferees in the suit for partition."

5. The judgments relied on by the learned counsel for

the Petitioners were not rendered in the suit for partition,

wherein, once, the preliminary decree is passed, addition of the

parties cannot be made except in the exceptional circumstances,

like death of parties, whose rights are carved out in the

preliminary decree. Admittedly, in the case at hand after drawing

preliminary decree, i.e., decree in the Special Civil Suit No.476 of

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1999, defendants therein sold the portion of the Suit Property to

the third party. In consideration of these facts, impleadment of

transferee in the appeal in no manner would assist the Court, for

effective and complete adjudication upon and settle all the

questions therein. Even otherwise, it being suit for partition,

defendants' share in the Suit Properties could be adjusted to the

extent of the part of Suit Property sold by them to Mrs. Poonam

Vikas Gaikwad and Mrs. Ashwini Gaikwad.

5. For all these reasons, no interference in the impugned

order is called for. Petition is dismissed.

                                   (SANDEEP K. SHINDE J.)




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                                         10-WP-4211-2016.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

INTERIM APPLICATION NO.200 OF 2020 IN WRIT PETITION NO.4211 OF 2016

Ramu Baloba Kanpile and Ors. ..... Applicants/Petitioners Vs.

Damodar Baloba Kanpile and Ors. ....Respondents

......

Ms. Janhavee Joshi i/by Mr. Sanjay S. Gawde for the Applicants/Petitioners.

Mr. Siddharth S. Wakankar for Respondent Nos.1 to 4, 6, 6a to 6e, and 8, 7a to 7d and 7f.

CORAM: SANDEEP K. SHINDE, J.

DATED : AUGUST 26, 2022

P.C.

1. Pending Petition, Respondent No.6 passed away. This

Application seeks to bring her legal representatives on record.

2. Heard learned counsel for the Parties.

3. In view of the averments in paragraphs 18, 19 of the

Application, delay caused in preferring application has been

explained. Thus, delay is condoned. Application is allowed and

made absolute in terms of prayer clauses (a) and (b).

4         Application is disposed of.




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                                    10-WP-4211-2016.docx

5         Petitioner to carry out consequential amendment

within fourteen days from today.


                                   (SANDEEP K. SHINDE J.)




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