Case Note & Summary
The petitioner, Shrikrushna Narayan Tupkari, filed a writ petition challenging the order dated 19.5.2013 passed by the learned District Judge-2, Akola, in Regular Civil Appeal No. 31/2013, rejecting his application (Exh.23) to be impleaded in the appeal. The appeal arose from a decree for specific performance of contract passed in RCS No. 388/2012. The petitioner claimed to be a bona fide purchaser for value of the suit property without notice of the pending suit or decree. He sought to participate in the appeal to protect his interest. The lower appellate court rejected his application on the ground that he was a subsequent purchaser and a stranger to the litigation, and that under Section 52 of the Transfer of Property Act (lis pendens), the decree was binding on him, so he was neither a necessary nor a proper party. The petitioner argued that he was cheated by respondent no.2 and would lose his hard-earned money. The High Court, per A.B. Chaudhari, J., held that the lower appellate court's reasoning was erroneous. The court observed that while the petitioner may be bound by the decree under the doctrine of lis pendens, he still has a right to be heard in the appeal to protect his interest. The court noted that the petitioner is a proper party, though not a necessary party, and should be allowed to participate in the appeal. Accordingly, the High Court allowed the writ petition, set aside the impugned order, and directed the lower appellate court to permit the petitioner to be impleaded and heard in the appeal.
Headnote
A) Civil Procedure - Impleadment of Subsequent Purchaser - Proper Party - A subsequent purchaser of suit property, though bound by the decree under Section 52 of the Transfer of Property Act, 1882 (lis pendens), is entitled to be heard in the appeal against the decree for specific performance to protect his interest, as he is a proper party. The lower appellate court erred in rejecting the application solely on the ground of lis pendens. (Paras 1-3)
Issue of Consideration
Whether a subsequent purchaser of suit property, who is not a party to the original suit, can be allowed to participate in the appeal against a decree for specific performance of contract.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 19.5.2013, and directed the lower appellate court to permit the petitioner to be impleaded and heard in Regular Civil Appeal No. 31/2013.
Law Points
- Lis pendens
- Section 52 Transfer of Property Act
- 1882
- necessary party
- proper party
- subsequent purchaser
- specific performance
- right to be heard
Case Details
2014 LawText (BOM) (02) 209
Writ Petition No. 5541/2013
Mr. A.S. Mehadia (for petitioner), Mr. U.J. Deshpande (for respondent no.1), Mr. B.N. Mohta (for respondent no.2)
Shrikrushna Narayan Tupkari
Mahadeo s/o Bansilal Dahale, Smt. Priyawanda w/o Pradip Angir
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Nature of Litigation
Writ petition challenging the rejection of an application for impleadment in a pending appeal against a decree for specific performance of contract.
Remedy Sought
The petitioner sought to be impleaded and heard in the appeal to protect his interest as a subsequent purchaser of the suit property.
Filing Reason
The petitioner claimed to be a bona fide purchaser for value without notice of the suit or decree and wanted to participate in the appeal to avoid losing his investment.
Previous Decisions
The trial court passed a decree for specific performance in RCS No. 388/2012. The appeal against that decree is pending. The lower appellate court rejected the petitioner's application (Exh.23) for impleadment.
Issues
Whether a subsequent purchaser of suit property, who is not a party to the original suit, can be allowed to participate in the appeal against a decree for specific performance of contract.
Submissions/Arguments
Petitioner argued that he is a bona fide purchaser for value without notice and should be allowed to be heard in the appeal to protect his interest.
Respondents argued that the petitioner is bound by the decree under Section 52 of the Transfer of Property Act (lis pendens) and is neither a necessary nor a proper party.
Ratio Decidendi
A subsequent purchaser of suit property, though bound by the decree under the doctrine of lis pendens (Section 52 of the Transfer of Property Act, 1882), is a proper party and is entitled to be heard in the appeal against the decree for specific performance to protect his interest. The lower appellate court erred in rejecting the application solely on the ground of lis pendens.
Judgment Excerpts
the lower Appellate Court rejected the Application (Exh.23) only on the ground that the petitioner is a subsequent purchaser and is a stranger to the litigation and in view of Section 52 of the Transfer of Property Act, as per the doctrine of lis pendens, the decree is binding on him.
the petitioner is a proper party, though not a necessary party, and should be allowed to participate in the appeal.
Procedural History
The trial court passed a decree for specific performance in RCS No. 388/2012. The defendants filed Regular Civil Appeal No. 31/2013 before the District Judge-2, Akola. During the pendency of the appeal, the petitioner (subsequent purchaser) filed an application (Exh.23) for impleadment, which was rejected on 19.5.2013. The petitioner then filed the present writ petition challenging that order.
Acts & Sections
- Transfer of Property Act, 1882: Section 52
