Ramashankar vs Om Prakash Singh

Manoj Misra, J.—Heard learned counsel for the petitioners; Sri H.P. Mishra for the respondent no.2 and perused the record.

The present petition under Article 227 of the Constitution of India has been filed challenging an order dated 9th September, 2016, passed by Additional District Judge/Special Judge, Court No.3, district Gorakhpur in civil appeal no.05 of 2013, by which application 58 Ga filed by respondent no.2 seeking leave to be impleaded for pursuing the appeal against the judgement and decree passed in Original Suit No.770 of 2007, has been allowed.

A perusal of the record would go to show that Original Suit No.770 of 2007 was instituted for cancelling a sale deed dated 27th September, 2001 executed in favour of the respondent no.1. It appears that during the pendency of the suit for cancellation of the sale deed, the disputed property was transferred by the defendant in favour of the respondent no.2 vide sale deed dated 23rd August, 2008. Thereafter, the suit was decreed on 31st January, 2013, against which the defendant filed an appeal no.05 of 2013, which is pending. During the pendency of the appeal, an application 58 Ga was filed by the respondent no.2 claiming that the defendant did not disclose about the pendency of the suit and that at the time of execution of sale deed he was not aware of the suit proceeding and that he came to know about the suit for the first time in the year 2014. By the order impugned dated 9th September, 2016, by placing reliance on a judgement of Apex Court in the case of Amit Kumar Shaw and another v. Farida Khatoon and another : AIR 2005 SC 2209, the Court below allowed the impleadment application.

The submission of learned counsel for the petitioners is that the order impugned is illegal because the sale deed executed in favour of the respondent no.2 was hit by doctrine of lis pendens and, therefore, it was subject to the suit. Therefore, once suit was decided against the defendant, the sale deed would stand automatically cancelled and therefore he had no right to be impleaded.

In the case of Thomson Press (India) Ltd. v. Nanak Builders and Investors (P) Ltd. (2013) 5 SCC 397, the Apex Court by relying upon earlier judgement in Vinod Seth v. Devinder Bajaj (2010) 8 SCC 1 held that Section 52 of the Transfer of Property Act does not render transfers effected during the pendency of the suit void but only render such transfer subservient to the rights as may be eventually determined by the Court. In Thomson Press case (supra) after considering various judgments, the Apex Court held that a transferee lis pendens can be allowed to be impleaded as a party in the suit in exercise of power under Order 22, Rule 10 CPC even though the application may have been moved under Order 1, Rule 10 of the Code. While holding so, by relying on observations made by the Apex Court in a previous decision in Amit Kumar Shaw v. Farida Khatoon (2005) 11 SCC 403, the Apex Court observed that a transferor pendente lite may not even defend the title properly as he has no surviving interest in the same or may collude with the other side. Therefore, to avoid such situations, the transferee pendente lite can be added as a party.

In the instant case, there is no document to demonstrate that transfer in favour of the respondent no.2 was in violation of any interim order passed by the Civil Court. Under the circumstances, keeping in mind the law laid down by the apex Court, this Court finds no good reason to interfere with the order impugned.

The petition is dismissed.