Bhaskaran vs Vijayaraghan and Others

K.M. Joseph, J.—The writ petitioner, in this petition filed under Article 227 of the Constitution of India, challenges Ext. P2 order passed by the Sub-Court, Palakkad. The undisputed facts in this case are as follows:

The first respondent obtained a decree for a sum of Rs. 49,182/- with interest at the rate of 12% from the date of the suit till realisation with costs of the suit. The decree further provided that the first respondent could realise the decree amount with costs and interest personally from the defendant and also by sale of the mortgaged properties. The defendant in the suit executed a settlement deed in respect of a decree schedule property in favour of the third respondent, his son. This was done in the year 1997, that is, after the decree was passed. The petitioner is an assignee of a portion of the property from the third respondent. The assignment was made in favour of the petitioner only in the year 1999. The suit was filed as early as in the year 1991. It is further not disputed that a sum of Rs. 1,03,000/- was reserved in the sale deed executed in favour of the petitioner to enable the petitioner to wipe off the decree amount. Thus it cannot be disputed that the petitioner purchased the property fully aware of the liability under the decree in O.S. 267 of 1991. It is also clear that the petitioner purchased the property fully aware that the suit was filed and was decreed. The contention of the petitioner is that he would be able to effect the payment through Court and avert the sale if he is impleaded as a party in the execution petition. Petitioner filed E.A. 450 of 2003 u/s 146 read with Order XXII, Rule 10 of the CPC to get himself impleaded as a supplemental respondent in the execution petition. He justifies this move on his part by stating that without impleading him as a party, he would not be in a position to pay off the amount and thus avert the sale. The petitioner also moved an application as E.A. 451 of 2003 under Order XXI Rule 69 read with Section 151 of the CPC to adjourn the execution of sale till orders are passed in the application pending. The Sub-Court, Palakkad dismissed the application pending. The Sub-Court, Palakkad dismissed the application for impleading, which is impugned before this Court.

I heard Sri V. Chitambaresh, counsel for the petitioner and Sri G. Sreekumar, appearing on behalf of the first respondent.

Learned counsel for the petitioner submitted that the order Ext. P2 is patently illegal. He submitted that u/s 146 of the CPC Proceedings instituted can be continued by or against the legal representative of a party. He claimed that as an assignee from the mortgagor he is entitled in law to be brought on the party array and to prosecute the matter just as his predecessor-in-interest could have in law. He pointed out that his client is interested in paying the money and that the payment can be made and the sale averted only if he is brought on the party array. He impugned the reasoning of the Court below stating that the Court below has overlooked the fundamental principles of law. He would say that the finding that the predecessor of one of the co-owners is not a necessary party is unsustainable. Learned counsel relied upon the decisions of the Supreme Court, reported in Raj Kumar Vs. Sardari Lal and Others, ; P.P.K. Gopalan Nambiar Vs. P.P.K. Balakrishnan Nambiar and others, . He also drew my attention to the decision of this Court reported in Rajappan and Others Vs. Sankaran Sudhakaran, .

Learned counsel Sri. G. Sreekumar appearing on behalf of the decree holder contended that the petition is utterly lacking in bona fides and is wholly meritless. He in particular pointed out the conduct of the petitioner in not discharging the liability despite a sum of Rs. 1,03,000/- being reserved under Ext. P1 assignment in his favour. He would point out that the order of the Court below is perfectly valid and that the petitioner has no legal right to be impleaded as he took the assignment with eyes wide open and fully aware of the proceedings and the liability thereunder. He would also point out that the assignment itself is hit by lis pendens.

The decision of the Supreme Court reported in P.P.K. Gopalan Nambiar Vs. P.P.K. Balakrishnan Nambiar and others, dealt with a situation where a contention was taken that upon the death of certain parties an appeal stood abated. The Court held in the said context that under Order XXII, Rule 10 of the CPC their respective interest devolved by transfer on the respondents who are already on record and there was no need to bring the legal representatives of the deceased on record or to transpose them as legal representatives. Learned counsel for the petitioner is attempting to draw support from the said decision. It cannot be doubted that proceedings can be taken against or by the legal representatives of a deceased party. It was in this context that the presence of the assignees from the deceased persons being on the party array not having the effect of abatement was considered by the Supreme Court. Learned counsel for the petitioner is also equally misplaced in placing reliance on the decision of the Supreme Court reported in Raj Kumar Vs. Sardari Lal and Others, . That was a case where during the pendency of a civil suit relating to an immovable property, respondent No. 4 purchased the property from the defendants by a registered deed of sale on 24-9-1996. It appears that respondent No. 4 was not aware of the pendency of suit in fact the vendors in the said case stated in the sale deed that the property was not subject-matter of any suit. The suit came to be decreed ex parte. The assignee from the defendant, as hereinbefore stated, filed an application under Order IX, Rule 13 of the CPC seeking to set aside the; decree and also made a prayer under Order XXII, Rule 10 of the CPC for being brought on record. The trial Court has allowed the applications. The said decision of the trial Court was confirmed by the High Court in revision. It was in such circumstances in an appeal therefrom by the plaintiff that the Supreme Court proceeded to hold as follows (paras 5, 9, and 13 of AIR SCW) :

"The doctrine of lis pendens expressed in the maxim "ut lite pendente nahil innoveture" (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 the law as a representative-in-Interest of the judgment-debtor and held bound by the decree passed against the judgment-debtor though neither has the defendant chosen to bring the transferee on record by apprising his opponent and the Court of the transfer made by him nor has the transferee chosen to come on record by taking recourse to Order 22, Rule 10, CPC. 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 or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the Court. Though not brought on record the lis pendens transferee remains bound by the decree."

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 appellant cannot dispute that the decree though passed against respondents 2 and 3 could be executed even against 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 in execution of the decree or can file an appeal against the 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 or Order 9, CPC that "in any ease 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 parte decree especially in the presence of Section 146, CPC."

It is upon this decision that learned counsel for the petitioner placed much emphasis. But I find that it is important to notice the facts, the context and the questions that arose for consideration before one culls out the ratio of the decision. The question posed for answer before the Supreme Court was whether an application is in fact maintainable at the hands of the assignee to set aside an ex parte decree and to be brought on the party array. It cannot be disputed, no doubt, that an assignee may be impleaded and may also continue proceedings which his pedecessor-in-interest may have done. An application to set aside an ex parte decree would certainly lie at the instance of such an assignee. As held by the Supreme Court the decree can be executed against an assignee and it was legally untenable to deny the right to the said assignee to come on the party array and prosecute the contentions in accordance with law. The Supreme Court has taken care to note that bringing on a lis pendens transferee on record is not as of right but in the discretion of the Court. The decision of the Supreme Court reported in Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and Another, on the other hand establishes that there is no absolute rule that the transferee pendente lite without leave of the Court should in all cases be allowed to join and contest the pending suits. It cannot be disputed that a transferee in a suit relating to immovable property would be bound by lis pendens and whether made party or not he is bound by the decree and cannot stand in the way of the decree holder realising the fruits of the decree, in the decision of the Supreme Court reported in Sarvinder Singh Vs. Dalip Singh and Others, the Court held that the transferee from parties in a suit relating to immovable property are hit by lis pendens u/s 52 of the Transfer of Property Act and they are neither necessary nor proper parties and the Court proceeded to hold that in such circumstances they are neither necessary nor proper parties. Learned counsel for the petitioner however sought to place reliance on the decision of this Court reported in Rajappan and Others Vs. Sankaran Sudhakaran, Therein the question which was posed for consideration was whether a decree of injunction could be executed against the legal representatives of the original defendant. The Court held that it is not open to the legal representatives of the judgment debtor to contend that the decree holder is bound to file another suit against them for identical reliefs. The Court took the said view based on the provisions contained in Sections 11 and 146 of the CPC on the one hand and Section 52 of the Transfer of Property Act on the other.

There can be no doubt as it is open to an assignee to move the Court to implead himself notwithstanding the fact the assignment took place during the pendency of a suit. The expression in the context of Section 52 naturally include pendency of execution proceedings as well. There is however a discretion with the Court to allow or disallow such motions even though normally it may exercise its discretion to allow the impleadment. This is despite the fact that he would continue to be bound by the decree. No doubt the content of the right varies from case to case. In the factual matrix presented before the Supreme Court in the case reported in Raj Kumar''s case 2004 AIR SCW 470 this was a very substantial right and the trial Court and the appellate Court permitted the assignee to take the proceeding which the original party could have taken, namely, to apply to set aside the ex parte decree. The original party having parted with his rights may fail to impugn the ex parte decree and it would bind the assignee and it may cause irreparable injury. The facts of the present case does not present any such features. As already noted, this is a case where there is an assignment in favour of the third defendant by the original owner and he in turn transfers the property in favour of the petitioner with a clear understanding that there is a decretal liability to be liquidated and in fact reserving a very substantial portion of the amount with the petitioner for payment to the decree holder to be discharged as decretal liability. Learned counsel for the petitioner would contend that he has a right under Order XXI, Rule 69 of C.P.C. and he can exercise that right if he is brought on the party array. He would contend that under Order XXI, Rule 69 of the C.P.C. the party can make the payment and get the sale adjourned from to time. He would pray that having regard to the said right, there was substance in his contention that he should be brought on the party array. I have no hesitation in repelling this contention, having regard in particular to the conduct of the petitioner. I feel that the circumstances in which the assignment in favour of the petitioner took place as also his conduct disentitle him from being brought on the party array. I also feel that there is an insuperable obstacle in the petition being allowed. I am invited to interfere with the order in exercise of my powers under Article 227 of the Constitution of India. It is well settled that my jurisdiction is very limited and what is more it is to be exercised where the obligation of the High Court under the said Article being supervisory, my effort should be to keep the subordinate courts within the bounds of their authority. Learned counsel for the petitioner was unable to bring to my notice any jurisdictional error or excess or error apparent on the fact of the record. He has no complaint that he was not heard, I am unable to persuade myself to hold that the exercise of powers by the Court below is perverse. Above all, I feel that the petitioner miserably failed to persuade me to hold that there is a manifest failure of justice.

Learned counsel then made a fervent plea that the petitioner may be given an opportunity to wipe off the entire amount within a reasonable period of time. Learned counsel for the respondent also did not seriously object to the said course being adopted. Accordingly, I am inclined to grant a period of three months to the petitioner to clear the decretal amount. The execution proceedings pursuant to the decree in O.S. No. 267 of 1991 shall stand stayed for a period of three months to enable the petitioner to discharge the decretal amount. Naturally if the amount is so paid, that will be the end of the matter. It is made clear that the sale can be proceeded with under the same proclamation if the petitioner does not wipe off the decretal liability as provided hereinbefore.

Thus the writ petition is disposed of as above.