- (1.) No one has appeared on behalf of respondents. Heard learned counsel for the petitioner. Ram Subhag since deceased and survived by Harihar Singh, respondent No. 3 in this writ petition instituted O.S. No. 695 of 1999 against Smt. Indrawati Devi and Om Prakash Yadav, respondent Nos. 4 and 5 in this writ petition. The suit was filed before Civil Judge, Junior Division, Gorakhpur. The allegation in the plaint of the suit was that about a year before some property was sold by him to defendant No. 2, Om Prakash, however Om Prakash in February, 1999 told the plaintiff that there was some discrepancy in the sale-deed hence a correction deed was to be executed but instead of that defendant No. 2 fraudulently got sale-deed of other property of the plaintiff executed in favour of Indrawati, defendant No. 1 on 4.3.1999. The suit was filed on 27.5.1999. The prayer was that sale-deed got executed from the plaintiff in favour of defendant No. 1, Smt. Indrawati Devi dated 4.3.1999 should be cancelled. In the suit petitioner filed an impleadment application stating therein that Smt. Indrawati Devi had sold the property in dispute to him through registered sale-deed dated 3.9.2004. Trial Court rejected the application on 17.4.2006 holding that the property was sold lis pendens hence petitioner was neither necessary nor proper party. Against the said order petitioner filed revision being Civil Revision No. 146 of 2006. In-charge, District Judge, Gorakhpur by seven lines order dismissed the revision summarily holding that applicant was transferee pendente lite and such transferee acquires no right independently and he is bound by the decree passed in the suit.
(2.) In my opinion, both the impugned orders are patently erroneous in law. There cannot be any dispute that a transferee during pendency of litigation is bound by the decree which is ultimately passed as provided by Section 52 of Transfer of Property Act which is quoted below: "52. Transfer of property pending suit relating thereto.--During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."
(3.) In the aforesaid Section there is no prohibition that the moment a suit in respect of some property is filed, the said property cannot be transferred. The fact that transferee pendente lite will be bound by the judgment in the suit is itself a sufficient ground for allowing the impleadment. If judgment is going to affect a person then he must be heard before passing of the said judgment. This is first principle of natural justice. To say that judgment is binding upon a person is completely different from saying that a person is not a necessary party in the suit. Moreover, under Order XII Rule 10, C.P.C., such transferee can very well be brought on record. Order XXII Rule 10, C.P.C. is quoted below: "10. Procedure in case of assignment before final order in suit.-- (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a Suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal there from shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)." Accordingly, writ petition is allowed. Both the impugned orders are set aside. Plaintiff shall implead petitioner and thereafter suit shall be decided very expeditiously.;