Prakash vs Shri Raj Kumar
2021 Latest Caselaw 7784 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4120/2020

1. Prakash S/o Shri Jamana Lal Ji Suhalka, Aged About 55 Years, R/o Keshav Nagar, University Road, Udaipur (Rajasthan).

2. Dinesh S/o Shri Banshi Lal Ji Suhalka, Aged About 47 Years, R/o 2-3, Patel Circle, Udaipur (Rajasthan).

3. Ritesh S/o Shri Sohan Lal Ji Suhalka, Aged About 41 Years, R/o 2-3, Patel Circle, Udaipur (Rajasthan).

----Petitioners Versus

1. Shri Raj Kumar S/o Shri Amba Lal Chanchawat, R/o Sector No. 11, Hiran Magari, Udaipur (Rajasthan).

2. Lrs Of Duda, S/o Shri Kalu Ji Dangi 2.1 Prabhu Lal S/o Duda Ji Dangi, R/o Guldi, Tehsil Mavali, District - Udaipur (Rajasthan).

3. Shri Pyar Chand S/o Kalu Ji Dangi, R/o Gudli, Tehsil Mavali, District - Udaipur (Rajasthan)

4. Ramesh S/o Shri Radha Kishan Paliwal, R/o Gogunda, District - Udaipur (Rajasthan).

5. Ram Niranjan S/o Shri G.s. Gaur, R/o 41/5, Ashok Nagar, Udaipur.

6. Aniruddh Sharma S/o Poonam Chand, R/o 115, Pragati Nagar Secl Colony, Dipca, District Korba (Chattisgarh).

----Respondents

For Petitioner(s) : Mr.Deelip Kawadia. For Respondent(s) : Mr.Muktesh Maheshwari a/w Mr.Aidan Choudhary.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

Reportable 19/03/2021

1. In wake of onslaught of COVID-19, abundant caution is

being taken while hearing the matters in Court.

2. The petitioners have preferred this writ petition

claiming the following relief:-

"It is, therefore, most humbly and respectfully prayed that this writ petition may kindly be allowed

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and the order impugned dated 10.01.2020 (Annex.9) passed by the learned Additional District Judge No.3, Udaipur in Civil Case No.74/2018 may kindly be quashed and set aside and the application filed by the present petitioners under Order 1 Rule 10 CPC read with Section 151 CPC may kindly be allowed."

3. The respondent no.1 Raj Kumar Chanchawat preferred

a suit for specific performance of the contract against the

defendants Ram Niranjan (respondent no.5) and others. The said

suit was decreed vide judgment and decree dated 17.12.2016 in

favour of respondent no.1 - Raj Kumar Chanchawat and in

pursuance of the decree dated 17.12.2016, sale deed was

executed in favour of the Raj Kumar Chanchawat on 13.09.2017.

Raj Kumar respondent No.1 in lieu sold the property to the

present petitioners vide registered sale deed dated 25.10.2017

which was registered on 26.10.2017. The contesting respondents

i.e. respondents no.5 and 6, particularly respondent No.5, who

was the judgment-debtor in the decree dated 17.12.2016 and the

present respondent No.6 Anirudh Sharma who stepped into the

shoes of the judgment-debtor, moved an application under Order

9 Rule 13 C.P.C. on 03.05.2018 to set aside the ex-parte decree

dated 17.12.2016. The present respondent no.1 Raj Kumar, who

stepped into the shoes of the decree holder, moved an application

under Order 1 Rule 10(2) C.P.C. for deletion of the name of

Aniruddh Sharma but the said application was dismissed vide

order dated 29.10.2018 and Aniruddh Sharma was maintained as

a party. The petitioners thereafter moved another application

under Order 1 Rule 10 C.P.C. that since they have stepped into the

shoes of Raj Kumar, decree holder, therefore, they may be

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impleaded as party to contest the application filed under Order 9

Rule 13 C.P.C. The learned Court below dismissed the said

application on the ground that the limited proposition of Order 9

Rule 13 C.P.C. only requires the parties to prove that the notices

were not properly served in the spirit of Order 9 Rule 13 C.P.C.

and no merit of the matter is involved, therefore, it was not

necessary for the petitioners to be arrayed as party.

4. Both the learned counsels for the parties have relied

upon the judgment of Hon'ble Apex Court passed in the case of

Raj Kumar Versus Sardari Lal and Ors. reported in (2004) 2

SCC 601. The relevant paras of the judgment are as follows:-

"6. 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 person would be a representative- in- interest of the defendant judgment-debtor.

7. 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".

8. A lis pendens transferee from the defendant, though not arrayed as a 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

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transfer or assignment inter vivos 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. It is interesting to note that a provision like section 146 of the CPC was not to be found in the 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 whereby the operation of section 146 of CPC was allowed to prevail independent of Order 21 Rule 16 CPC.

9. 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.

10. The law laid down by a four-judges bench of this Court in Saila Bala Dassi v. Nirmala Sundari Dassi is apt for resolving the issue arising for decision herein. A transferee of 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 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

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22 Rule 10 of the CPC. 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 10. Whoever is entitled to be but has not been brought on record under Order 22 Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal 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 record at the stage of the appeal can do so by reference to section 146 of the CPC which provision being a beneficent provision should be construed liberally and so as to advance justice and not 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.

11. In Saila Bala Dassi case an earlier decision of this Court in Jugal Kishore Saraf v. Raw Cotton Co. Ltd. was followed. It was a case 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 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

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transferee is entitled under section 146 to make an application for execution 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 on record under Order 22 Rule 10 and must, therefore, be also regarded as a representative of the plaintiff within the meaning of section 47 of the CPC.

12. In Sardar Govindrao Mahadik v. Devi Sahai this Court held that an application not falling under Order 22 Rule 10 of the CPC stricto sensu could yet be held to be maintainable by having recourse to section 146 of the CPC.

13. The appellant cannot dispute that the decree though passed against the respondents 2 and 3 could be executed even against the respondent 4, he being a lis pendens transferee though not having been joined in the suit 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 file 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 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 ex-

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parte decree especially in the presence of section 146 of the CPC.

14. Incidentally, we may observe that in Surjit Singh v. Harbans Singh the assignees pendente lite were refused 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 restraint order passed by the Court injuncting any alienation/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.

15. We hold that a lis pendens transferee, though not brought on record under Order 22 Rule 10 of the 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.

16. 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 no.4 is purely one of fact and well reasoned. The attack against the locus standi of respondent no.4 to maintain the application under Order 9 Rule 13 of the CPC fails and so does the appeal."

5. Learned counsel for the petitioners submits that the

judgment in Raj Kumar (supra) is in their favour because Section

146 C.P.C. has to be given widest connotation and the person who

is part of any proceeding or application which has been moved

against him, then he has a right to be arrayed as a party. Learned

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counsel for the petitioners further submits that the petitioners

premise of holding the property is the decree dated 17.12.2016

and in case the decree is set aside by accepting the application

under Order 9 Rule 13 C.P.C. which has been preferred by the

respondents no.5 & 6, then the very premise of their ownership

will go away uncontested.

6. Learned counsel for the respondents no.5 & 6, however,

submits that the limited ambit and scope of Order 9 Rule 13 C.P.C.

is not on merits and, therefore, any contest to it by the petitioners

will be inconsequential and shall not impact the parties on merit

and thus, it would have been a party to the suit, in case, the

application is allowed.

7. This Court after hearing the counsel for the parties at

length and perusing the material available on record, is of the

clear opinion that Section 146 of the CPC has to be given the

widest connotation and in this case there is a proceeding arising

out of an application and is certainly against the person for whom

the decree stands i.e. decree dated 17.12.2016 and setting aside

such decree under Order 9 Rule 13 C.P.C. will directly affect him.

The wider connotation of the law in the opinion of this Court is

important because taking too technical a view to deprive any party

to at least contest his right may be a narrow scope of Order 9 Rule

13 C.P.C., would be a clear deprivation of his rights. The Order 1

Rule 10 application of respondent No.6 has already been accepted

earlier by the same Court although on a different ground because

he was affected by the ex-parte decree and it was given against

him and the judgment of Hon'ble Apex Court was in his favour, but

at the same time, the original decree holder of decree dated

17.12.2016 may have lost the interest after passing on the same

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to the present petitioners and may not be wanting to contest the

dispute in future and thus, the present petitioners need to be

permitted to contest even when the same is within the limited

scope of Order 9 Rule 13 C.P.C.

Thus, giving the connotation the widest amplitude as

available under Section 146 of the CPC read with precedent law of

Raj Kumar (Supra), this Court is of the opinion that the application

under Order 1 Rule 10 C.P.C. in the application under Order 9 Rule

13 C.P.C. has to be allowed although this shall not permit the

petitioners at the stage of Order 9 Rule 13 C.P.C. to expand the

dimension of the adjudication beyond the scope of Order 9 Rule 13

C.P.C.

8. In view of the above, the present writ petition is

allowed and the application under Order 1 Rule 10 C.P.C. is

accordingly allowed. The petitioners being affected party if the

application under Order 9 Rule 13 C.P.C. is allowed, have to be

made party. The learned Court below is thus, directed to array the

petitioners as party while deciding the application under Order 9

Rule 13 C.P.C.

It is needless to say that this Court has not gone into the

merits of the case and has merely restricted its adjudication on

the point of application under Order 1 Rule 10 C.P.C. in the

proceeding of application under Order 9 Rule 13 C.P.C.

Stay petition and all pending applications also stand disposed

of accordingly.

(DR. PUSHPENDRA SINGH BHATI),J.

128-Jitender/SPhophaliya/-

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