- (1.) S. N. Srivastava, J. Application in hand is the application filed by Smt. Munawar Rana wife of Shamsher Rana resident of Nai Basti chakrauta Road Saharanpur encapsulating the prayer for recall of judgment delivered on 3-11-2004 by this Court attended with further prayer to implead the applicant in the array of parties.
(2.) SECOND appeal arising out of O. S. No. 268 of 1983 Premwati v. Jagdish, was decided by this Court on merits on 3rd November 2003 as stated supra. The applicant claims herself transferee from defendant from whom she purchased property in suit through registered sale deed dated 22-11-1999 during pendency of second appeal. I have heard Sri R. K. Jain, Senior Advocate assisted by Ashish Singh learned Counsel appearing for the applicant and Sri Ashish Kumar Singh learned Counsel appearing for the plaintiff appellant. Sri R. K. Jain, began submissions by relying upon case law reported in JT 2004 (2) SC 196, Raj Kumar v. Sardari Lal, and canvassing that the applicant was a transferee from defendant, and that she, albeit the fact, was not arrayed as a party in the suit, was still a person claiming her rights through defendant and by this reckoning, proceeds the argument, she has right to institute application for recall of order by virtue of being affected by the decree. Learned Counsel further canvassed that Satyapal transferor conveyed to transferee that in the second appeal pending before the High Court, an application was moved by plaintiff with the prayer that she did not want to prosecute the aforesaid case as a result of some compromise and it was in that perspective that she purchased the property. In support of her case, the applicant has filed a copy of sale deed dated 22-11-1999 and also Copy of the application allegedly filed by Prem Wati on 3-5-1999 in the Court of Civil Judge in Misc. Case No. 1006 of 1990 and the order dated 9-4-2003 dismissing the suit as withdrawn. Per contra, Sri A. K. Singh contended that the plaintiff was not aware of any sale deed dated 22-11-1999 allegedly executed by Satyapal; that Satyapal was also not competent to transfer the dispute property as Satyapal was only a tenant of disputed property. He further drew attention to the contents of counter-affidavit the text of which is that the husband of applicant and applicant herself had full knowledge of pendency of second appeal and that no application dated 3-5-1999 was ever filed by the plaintiff and that now the applicant is trying to deprive the plaintiff of her legal rights to remain in possession of the property. In support of his case, the learned Counsel filed extracts of assessment register, which vouched for payment of water and house taxes. He further contended that as applicant had full knowledge of pendency of second appeal, on the principles of lis pendens, the applicant is not entitled to get the judgment recalled and application is liable to be dismissed. The learned Counsel referred to para 4 of the rejoinder affidavit which contains admission that Satya Pal had conveyed to her that compromise had taken place between him and the plaintiff and in pursuance of thereof the appellant i. e. Prem Wati had withdrawn her appeal before the High Court.
(3.) LEARNED Counsel for the applicant placed reliance on Raj Kumar v. Sadari Lal and Ors. , 2004 (2) JCLR 121 (SC) : JT 2004 (2) SC 196. The quintessence of what has been laid down in this decision is that the doctrine of lis pendens has been statutorily incorporated under Section 52 of the Transfer of Property Act and a defendant cannot, by alienating the property during pendency of litigation, venture into depriving the successful plaintiff of the fruits of decree. The transfer pendente lite is treated in the eye as a representative-in-interest of judgment debtor and held bound by decree passed against judgment debtor though neither the defendant had chosen to bring the transferee on record by apprising his opponent and the Court of the transfer made by him nor the transferee has chosen to come on record by taking recourse to Order XXII, Rule 10 of the C. P. C. The question which the Apex Court was seized of was that in case transfer took place during 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. The Apex Court relied upon Section 146 of the C. P. C. In a case where ex parte decree was passed against defendant, an application was filed to set aside the ex parte decree by transferee, question was whether such transferee has locus standi to file application for recall of ex parte decree. Coming to the present case, it would appear that the suit itself was decreed on merits by the trial Court on 30-11-1985. The appeal preferred against the said order by the defendant was allowed on merits on 18th October, 1986 by the appellate Court and suit was dismissed on merits. A second appeal filed in this Court was admitted as far back as in the year 1987 on a substantial question of law mentioned as question No. 5 in memo of appeal. It would further transpire from the order sheet that the aforesaid appeal was dismissed for default on 18-4-2001 but on an application filed by the appellant order dated 18-4-2001 was recalled vide order dated 3-8-2001. It would further appear that on the date on which sale deed was executed by defendant, the aforesaid appeal was pending and it was being prosecuted by the appellant diligently and Opposite Parties 2 and 3 the transferor of applicant were represented and prosecuted in the second appeal in the High Court. It is nobody's case that the appeal was withdrawn before the date of execution of sale deed dated 22-11-1999. It would further transpire that on the statement of Sri H. N. Sharma, learned Counsel for the appellant the second appeal was permitted to be withdrawn on 7-4-2003 but on restoration application moved by the applicant for recall of order passed by Hon. Mr. Justice B. K. Rathi, dismissing the appeal as withdrawn, notices were issued fixing 25-11-2003. By the order-dated 6-4-2004, this Court passed order directing the office to inform the learned Counsel for Opposite parties. By a detailed order, the restoration application was allowed and order dated 9-4-2003 was recalled by order dated 7-4-2004 and Second appeal was restored to its original number. Thereafter, it would further appear, fresh notices were issued to Opposite parties fixing 17-5-2004 for hearing of the appeal. The office report scribed thereon makes it clear that on 14-5-2004, the notices had not been received back after service and therefore, fresh notices were issued. The notices were again issued but the same were received back unserved and hence registered notices were ordered to be issued on 19-7-2004. The notices were sent to the respective Counsels for the parties namely, Virendra Kumar, S. K. Srivastava, and V. K. Srivastava by the Court vide order dated 23-9-2004 and thereafter the case was heard. The information was again directed to be given to learned Counsel for the opposite parties and the case was listed in Daily cause list.;