Madhya Pradesh High Court
Vikas Jaiswal vs Dr. Swarup Doctor on 2 April, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
FA No. 603 of 2021
(VIKAS JAISWAL Vs DR. SWARUP DOCTOR AND OTHERS)
Dated : 02-04-2024
Shri Akash Rathi - Advocate for the appellant.
Shri Lokesh Mehta - Advocate for the Respondent [R-5].
Shri Vivek Phadke - Advocate for the Respondent [R-4].
Shri Vishal Baheti - Advocate for the Respondent [R-1].
1. Heard on IA No.5811 of 2021 & IA No.6140 of 2021, which are the
applications for grant of leave to file appeal and seeking permission to file the
present appeal.
2. Appellant has preferred these applications for seeking permission to file the
present appeal on the grounds that he has purchased the suit land in the auction
made by the concerned bank authorities and sale certificate and registered sale
deed has been executed in his favour. He is the bonafide purchaser. The
judgment and decree passed by the trial court prejudicially affected him.
Therefore, he should be permitted to prefer the present appeal against the
impugned judgment and decree.
3. Counsel for respondent No.1 opposes the prayer by submitting that
respondent No.1 is the recorded Bhumiswami of the land in question and the
appellant is a transferee pendelite of the property in question. After filing the
suit, land in question was mortgaged without the leave of the trial Court,
therefore, after passing the decree no valid title can be transferred in favour of
the appellant and appellant is not entitled to get his claim adjudicated. Hence
these applications deserves to be dismissed.
4. Both the parties heard at length and perused the record with due care.
5. It appears that the suit property basically belongs to Smt. Sheela Choubal.
Allegedly she has executed power of attorney in favour of the respondent No.2
and respondent No.2 has allegedly executed sale deed in favour of respondent
No.3. Later on respondent No.3 has executed another sale deed in favour of
respondent No.4. After the death of Sheela Choubal, respondent No.1 has filed
a civil suit for declaration, possession and permanent injunction against
respondents No.2 to 4 being the legal heirs of Sheela Choubal. During the
pendency of civil suit, respondent No.4 has mortgaged the suit land at Bank of
Baroda, Dewas and later on suit has been decreed by the trial Court in favour of
the respondent No.1, but in auction the Bank has sold out the land in question
to the appellant.
6. Learned counsel for the appellant has placed reliance upon the judgment of
the Hon'ble Apex Court in the case of Hardevinder Singh Vs. Paramjit
Singh and others reported in (2013) 9 SCC 261, in which it has been held
that:-
"17................If a judgment and decree prejudicially affects a person,
needless to emphasise, he can prefer an appeal. In this context, a passage from
Jatan Kumar Golcha v. Golcha Properties (P) Ltd. [1970(3) SCC 573] is worth
noting: (SCC p. 575, para 3):
"3...... It is well settled that a person who is not a party to the suit may
prefer an appeal with the leave of the appellate court and such leave should be
granted if he would be prejudicially affected by the judgment."
7. He has also placed reliance upon the judgment of Hon'ble Apex Court in the
case of My Palace Mutually Aided Co-operative Society Vs. B. Mahesh and
others reported in 2022 LiveLaw (SC) 698, but the Hon'ble Apex Court in the
case of Usha Sinha Vs. Dina Ram and others reported in (2008) 7 SCC
144 has held as under:-
"17. Rule 102 clarifies that Rules 98 and 100 of Order 21 of the Code do
not apply to transferee pendente lite. That Rule is relevant and material and may
be quoted in extenso:
"102. Rules not applicable to transferee pendente lite.-Nothing in Rule 98
and 100 shall apply to resistance or obstruction in execution of a decree for the
possession of immovable property by a person to whom the judgment-debtor
has transferred the property after the institution of the suit in which the decree
was passed or to the dispossession of any such person."
Bare reading of the Rule makes it clear that it is based on justice, equity
and good conscience. A transferee from a judgment-debtor is presumed to be
aware of the proceedings before a court of law. He should be careful before he
purchases the property which is the subject-matter of litigation. It recognises the
doctrine of lis pendens recognised by Section 52 of the Transfer of Property
Act, 1882. Rule 102 of Order 21 of the Code thus takes into account the
ground reality and refuses to extend helping hand to purchasers of property in
respect of which litigation is pending ................."
8. In the instant case, it is noteworthy that the proposed appellant did not file
any application under Section 102 in the execution proceedings. He has
purchased the suit land in an auction made by the Bank of Baroda, Dewas.
Being a successful bidder he has purchased the suit land through registered sale
deed. Although applicant/appellant was not a party before the trial Court but
being a registered owner of the suit property he shall be prejudicially affected by
the impugned judgment and decree. As a rule, leave to appeal will not be
refused to a person who might have been made registered owner. In the said
case while dealing with the concept of person aggrieved, the applicant can be
considered as a person aggrieved because if the said judgment and decree
allowed to stand, the same will cause any personal injury to him or shall affect
his interest otherwise.
9. In view of the aforesaid, both the applications (IA No.5811 of 2021 & IA
No.6140 of 2021) are hereby allowed and the appellant is permitted to prefer the
present appeal against the impugned judgment.
List after 4 weeks along with the connected matters.
(ANIL VERMA)
JUDGE
trilok
