Ritesh Suhalka Vs Smt. Shanta Devi and Others

@JUDGMENTTAG-ORDER

Gopal Krishan Vyas, J.@mdashInstant writ petition has been filed under Art. 227 of the Constitution of India by the petitioner, with the prayer that impugned order dated 12.04.2010 (Annex.-4) may be quashed and application filed by the petitioner for impleadment as party in the Execution petition No. 17/2007 pending before the Court of Addl. District Judge No. 1 Udaipur may be allowed. According to facts of the case, a decree was passed on 16.11.1989 in favour of the respondents No. 3 to 14. Plaintiff decree-holders against respondents No. 1 & 2 judgment-debtors. In the year 2007, execution petitions were filed by respondents No. 3 to 14 against respondents No. 1 and 2 separately. All the execution petitions were consolidated vide order dated 16.01.2009.

2. The petitioner after determination of rights by the civil Court purchased the share of decree-holder respondent No. 3 in respect of the property in question vide registered sale-deed dated 21.04.2009 and, due to purchasing the property in question, all rights of respondent No. 3 have now vested in the petitioner, therefore, an application under Order 1 Rule 10 of C.P.C. was filed in the execution proceedings being necessary party.

3. Learned executing Court rejected the application filed by the petitioner upon objection raised by respondents No. 4 to 14 that the petitioner is not necessary party because sale-deed does not have any effect upon the right of other decree-holders. In this writ petition, the petitioner is challenging validity of the rejection order dated 12.04.2010 passed in execution proceedings No. 17/07 pending in the Court of Addl. District Judge No. 1, Udaipur.

4. Learned counsel for the petitioner vehemently submits that share of respondent No. 3 was purchased through registered sale-deed by the petitioner, therefore, as per settled principle of law that if third party shows some semblance of title or interest in the property in question, then, he can be impleaded as party. Admittedly, petitioner purchased the share of the respondent No. 3 through registered sale-deed, therefore, he is having interest in the property to the extent of share of the respondent No. 3 decree-holder and as such there was no occasion for the Court below to reject the application holding that petitioner is not necessary party. The executing Court has committed a serious mistake in rejecting the application filed by the petitioner because admittedly, after passing decree in the year 1989, in the year 2009 the petitioner purchased share of the decree-holder respondent No. 3, therefore, the order impugned may be quashed and it may be ordered that the petitioner is necessary party and he is entitled to be impleaded as party.

5. Learned counsel for the petitioner invited my attention towards judgments reported in Zila Singh and Others Vs. Hazari and Others, .; Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, ; A. Nawab John and Others Vs. V.N. Subramaniyam, ; and judgment of Madras High Court reported in Gnanasundaram and Another Vs. Murugesa Naicker, . While citing the above judgments, it is submitted that the petitioner is entitled to be impleaded as party.

6. per contra, counsel for the respondents submits that no error has been committed by the executing Court in passing the order impugned because as per language of order 1 Rule 10, C.P.C. read with Order 22 Rule 10, C.P.C. can be filed during the trial of the suit and application under Order 22 Rule 10, C.P.C. can also be filed during the pendency of the suit; but, here, in this case, the application has been filed in the execution proceedings on the ground that petitioner has purchased the property in question to the extent of share of the decree-holder respondent No. 3, therefore, it cannot be said that petitioner is having any right to be impleaded as party in place of decree-holder respondent No. 3 who has sold his share to the petitioner, on this ground, this writ petition deserved to be dismissed.

Learned counsel for the respondents placed reliance upon judgment of the Apex Court reported in Sanjay Verma Vs. Manik Roy and Others, .; and, judgment of this Court reported in Surendra Singh Vs. Vishvanath and Others, ., in support of his submission.

7. After hearing learned counsel for the parties, I have perused the entire pleadings of this case and judgments cited by both the parties.

8. Admittedly, decree was passed in favour of respondents No. 3 to 14 on 16.11.1989 in civil suit No. 163/83 by Addl. District Judge No. 1, Udaipur. Said decree was further challenged by way of filing S.B. Civil Regular First Appeal No. 2/1989 and said appeal was also dismissed by this Court on 17.08.2007 in which judgment of the trial Court dated 16.11.1989 was affirmed and decree passed in favour of respondents No. 3 to 14 was confirmed.

9. Respondent No. 3 executed a registered sale-deed in favour of petitioner vide sale-deed dated 21.04.2009 for consideration of Rs. 4,50,000/- whereby he has sold his one-twelfth share of the property to the petitioner; meaning thereby, the sale-deed was executed by respondent-decree holder in respect of his share holding in the property in question being title holder of his share after decree having been confirmed in appeal. Therefore, after purchasing the said property rights of respondent No. 3 are created in favour of the petitioner and due to said reason, petitioner became entitled to participate in the execution proceedings.

10. In the judgment of Zila Singh and Others Vs. Hazari and Others, , in para 8, 9 and 12, Hon''ble Supreme Court made following adjudication which reads as under:

8. Mr. Janardan Sharma, learned counsel for the respondents urged that looking to the scheme of Ss. 4, 6 and 15 of the Punjab Pre-emption Act, 1930, it is incontrovertible that foundation of the right of per-emption being close personal relationship, it is a personal right and can be exercised only by the person in whom it vests under the law and if in exercise of such right such a qualified person seeks to pre-empt a sale by instituting an action in a Court of law, the resultant decree would be a personal decree. Urged Mr. Sharma further that if the decree is a personal one, obviously it cannot be assigned and the assignee gets no interest in a decree so as to enable him to execute the decree. The question whether the right of pre-emption conferred by the provisions of Punjab Pre-emption Act, 1913, is a personal right or it creates an interest in the property is no more res integra and is concluded by a decision of this Court between the very parties to the present appeals, in an earlier round of litigation wherein the first vendees, the present respondents had challenged the right of Neki deceased pre-emptor to obtain a decree for pre-emption. Apart from the fact that the point is concluded by a decision of a Bench of three Judges of the Court, it is inter-parts and, therefore, binding on the respondents whom Mr. Janardan Sharma represents and at the instance of the respondents it cannot be re-opened or re-examined. As the matter calls for no examination at the hands of the Court it would suffice to quote what has been held in Hazari and Others Vs. Neki and Others, . Ramaswami, J. speaking for the Court observed as under:

In support of these appeals, learned counsel put forward the argument that the right of pre-emption claimed by Neki deceased plaintiff was a personal right which died with him upon his death and the legal representatives of Neki were not entitled to be granted a decree for pre-emption. The argument was that the statutory right of pre-emption under the Punjab Act was not a heritable right and no decree for pre-emption should have been passed by the lower Court in favour of the legal representatives as representing the estate of Neki. We are unable to accept the argument put forward by the appellants. It is not correct to say that the right of pre-emption is a personal right on the part of the pre-emptor to get the re-transfer of the property from the vendee who has already become the owner of the same. It is true that the right of preemption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land, The correct legal position is that the statutory law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner''s right of sale and compels him to sell the property to the person entitled to pre-emption under the statute. In other words, the statutory right of pre-emption though not amounting to an interest in the land is a right which attaches to the land which can be enforced against a purchaser by the person entitled to pre-empt.

9. Mr. Janardan Sharma, however, sought to distinguish the position under a voluntary inter vivos transfer and an involuntary transfer such as by way of inheritance and urged that in this case Neki having sold the lands to the present appellants by sale inter vivos they cannot enjoy the fruits of the decree. This distinction is immaterial as far as the present case is concerned because the present case is concerned because the question in terms disposed of by the Court is that Neki having complied with Order XX, Rule 14, had become the owner of the lands and his legal representatives on his death were rightly substituted in the proceedings. The contention, therefore, that decree in a suit for pre-emption is a personal decree and creates no interest in land, the subject matter or pre-emption, must accordingly fail.

12. Section 146 reads as under:--

Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, than the proceeding may be taken or the application may be made by or against any person claiming under him.

11. In the case of Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, , the Constitution Bench of the Hon''ble Supreme Court held that the object of introduction of Sec. 146 in the Code of Civil Procedure, 1908 is to facilitate the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense.

12. Here, in this case it is not disputed that at the time of selling his right by respondent No. 3 to the petitioner in the year 2009 he was not holding any right in the property, therefore, it cannot be said that the petitioner was not necessary party in the execution proceedings.

Section 146 of the CPC reads as under:

Save as otherwise provided by this Code 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 the application may be made by or against any person claiming under him.

13. In the recent judgment reported in A. Nawab John and Others Vs. V.N. Subramaniyam, , Hon''ble Apex Court held that pendent lite the purchaser''s application for impleadment should normally be allowed or considered liberally. Para 19 of the said judgment is as under;

19. This Court on more than one occasion held that when a pendente lite purchaser seeks to implead himself as a party-defendant to the suit, such application should be liberally considered. This Court also held in Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, , that, "justice requires", a pendente lite purchaser "should be given an opportunity to protect his right". It was a case, where the property in dispute had been mortgaged by one of the respondents to another respondent. The mortgagee filed a suit obtained a decree and commenced proceedings for sale of the mortgaged property; The appellant Saila Bala, who purchased the property from the judgment-debtor subsequent to the decree sought to implead herself in the execution proceedings and resist the execution. That application was opposed on various counts. This Court opined that Saila Bala was entitled (under Sec. 146 of the C.P.C. to be brought on record to defend her interest because, as a purchaser pendente lite, she would be bound by the decree against her vendor. There is some divergence of opinion regarding the question, whether a 26 pendente lite purchaser is entitled, as a matter of right, to get impleaded in the suit, this Court in Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, , held that:

Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee 26 pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendents transferee a party, under Order 22 Rule 10 an alienee 26 pendente lite may be joined as party. As already notice, the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee 26 pendent lite of an interest in immovable property is a representative-in interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.

[Emphasis supplied]

The preponderance of opinion of this Court is that a pendente lite purchaser''s application for impleadment should normally be allowed or "considered liberally".

14. Here, in this case, it is not disputed by the respondents that respondent No. 3 was not having any right in the property in question. The only argument is that the executing Court has rightly rejected the application filed under Order 1 Rule 10, C.P.C. and under Order 22 Rule 10 C.P.C. because the decree-holder respondent No. 3 is already prosecuting the execution proceedings and petitioner being purchaser of the share in question cannot be permitted to be party in the proceedings.

It is true that this Court took the different view in the judgment of Surendra Singh vs. Viswanath & Ors. (supra) but in that case, impleadment was sought during the pendency of the suit. Therefore, it was held that during the pendency of the suit or proceedings, the property cannot be alienated without permission of the Court because transfer is barred by Sec. 52 of the Transfer of Property Act, 1882. Here, in the present case, the fact is altogether different because the right of respondent No. 3-seller of the property in question was already determined up to the High Court and, thereafter, he has sold his right to the petitioner. Therefore, obviously the petitioner has every right and interest to pursue the execution proceedings because he is required to be treated in the shoes of the decree-holder respondent No. 3.

15. In view of the above, judgments cited by learned counsel for the respondents did not help their contention to succeed because in both the cited judgments applications were rejected during pendency of the suit where rights were to be determined. But, in the instant case, right of the seller has already been determined finally, therefore, even if the petitioner has mentioned the provision of Order 1 Rule 10 and Order 22 Rule 10 of the Code in the application in which application can be filed during course of trail but he has mentioned Sec. 151, C.P.C. also. Therefore, the executing Court ought to have considered the above fact for exercising power under Sec. 151, C.P.C. for impleading the petitioner as party. In view of the above discussion, this writ petition is allowed. Order impugned dated 12.04.2010 passed by Addl. District Judge No. 1, Udaipur in execution proceedings No. 17/07 is quashed and set aside and petitioner is ordered to be impleaded as party in the execution proceedings.