Case Note & Summary
The petitioners, original plaintiffs in a partition suit, filed Regular Civil Suit No.268/2008 seeking half share in suit lands bearing Gat No.151 and 743. The suit was dismissed on 30/09/2010. The plaintiffs appealed before the District Court, Ahmednagar in Regular Appeal No.351/2010. During the pendency of the appeal, respondent Nos.5 to 7 purchased a portion of the suit property (20 R and 24 R from Gat No.151) on 06/11/2012. They filed an application under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (CPC) seeking to be added as defendants. The Principal District Judge allowed the application by order dated 04/10/2016. Aggrieved, the petitioners filed the present writ petition. The petitioners argued that the purchase was prohibited by Section 52 of the Transfer of Property Act, 1882 (lis pendens) and that the purchasers were not bona fide, as they resided in the same village and had knowledge of the litigation. They also contended that no consideration was paid. The respondents supported the impugned order. The High Court held that the subsequent purchasers are necessary parties to avoid multiplicity of proceedings and to effectively adjudicate the dispute. The court observed that even if the purchase is hit by lis pendens, the purchasers are bound by the decree and their impleadment would not prejudice the petitioners. The court dismissed the writ petition, upholding the order of the trial court.
Headnote
A) Civil Procedure Code - Impleadment of Parties - Order 1 Rule 10 CPC - Subsequent Purchasers - The court considered whether purchasers of suit property during pendency of appeal can be added as defendants. Held that such purchasers are necessary parties to avoid multiplicity of proceedings and to effectively adjudicate the dispute, even if the purchase is hit by lis pendens under Section 52 of the Transfer of Property Act, 1882. (Paras 1-6)
B) Transfer of Property Act - Lis Pendens - Section 52 - Effect of Purchase Pendente Lite - The court noted that while a purchase during pendency of litigation is subject to the outcome of the suit, it does not bar the purchaser from being impleaded as a party. The purchaser's rights are derivative and they are bound by the decree. (Paras 3-6)
Issue of Consideration
Whether subsequent purchasers of suit property during pendency of appeal can be impleaded as defendants under Order 1 Rule 10 CPC despite the prohibition under Section 52 of the Transfer of Property Act, 1882.
Final Decision
Writ petition dismissed. Order dated 04/10/2016 passed by Principal District Judge, Ahmednagar allowing application Exh.31 under Order 1 Rule 10 CPC is upheld. No order as to costs.
Law Points
- Order 1 Rule 10 CPC
- Section 52 Transfer of Property Act 1882
- Lis Pendens
- Impleadment of subsequent purchasers
- Necessary and proper party
Case Details
2017 LawText (BOM) (06) 79
Writ Petition No.11925 of 2016
Mr.V.P.Latange for petitioners, Mr.A.G.Ambetkar for respondent Nos.1,2 and 5 to 7, Mr.A.T.Kanawade for respondent No.3, Mr.N.B.Patekar for respondent No.4
Rama @ Ramdas Bapu Khakal and Navnath s/o Rama Khakal
Narayan Govinda Khakal, Sonyabapu s/o Narayan Khakal, Paraji s/o Rangnath Bhogade, Asaram @ Ashok s/o Bapu Khakal, Bandu Madhukar Bhavar, Santosh Haribhau Gore, Anita Santosh Gore
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Nature of Litigation
Civil writ petition challenging order allowing impleadment of subsequent purchasers in a partition appeal.
Remedy Sought
Petitioners (original plaintiffs) sought quashing of order dated 04/10/2016 allowing application under Order 1 Rule 10 CPC filed by respondent Nos.5 to 7 for being added as defendants in Regular Appeal No.351/2010.
Filing Reason
Petitioners aggrieved by impleadment of subsequent purchasers who purchased property during pendency of appeal, allegedly in violation of Section 52 of Transfer of Property Act.
Previous Decisions
Regular Civil Suit No.268/2008 for partition dismissed on 30/09/2010. Appeal pending. Application Exh.31 for impleadment allowed by Principal District Judge, Ahmednagar on 04/10/2016.
Issues
Whether subsequent purchasers of suit property during pendency of appeal can be impleaded as defendants under Order 1 Rule 10 CPC despite the prohibition under Section 52 of the Transfer of Property Act, 1882.
Submissions/Arguments
Petitioners: Purchase is prohibited by Section 52 of Transfer of Property Act (lis pendens) and does not create any rights; purchasers are not bona fide as they reside in same village and had knowledge of litigation; no consideration paid; intention is to complicate litigation.
Respondents: Supported the impugned order; argued that impleadment is necessary for effective adjudication and to avoid multiplicity of proceedings.
Ratio Decidendi
Subsequent purchasers of suit property during pendency of litigation are necessary parties under Order 1 Rule 10 CPC to avoid multiplicity of proceedings and for effective adjudication. Even if the purchase is hit by lis pendens under Section 52 of the Transfer of Property Act, the purchasers are bound by the decree and their impleadment does not prejudice the plaintiffs.
Judgment Excerpts
The petitioners are aggrieved by the order dated 04/10/2016 passed by the learned Principal District Judge, Ahmednagar vide which application Exh.31 filed by respondent Nos.5, 6 and 7 herein for being added as defendants in Reg.Appeal No.351/2010, has been allowed.
Mr.Latange strenuously submits that the said purchase is prohibited by Section 52 of the Transfer of Property Act, 1882 and in the face of such a prohibition, the purchase of the property pendenti lite would not create any rights in the said applicants.
The subsequent purchasers are necessary parties to avoid multiplicity of proceedings and to effectively adjudicate the dispute.
Procedural History
Regular Civil Suit No.268/2008 filed by petitioners for partition dismissed on 30/09/2010. Appeal filed as Regular Appeal No.351/2010 before District Court, Ahmednagar. During appeal, respondent Nos.5 to 7 purchased part of suit property on 06/11/2012 and filed application Exh.31 under Order 1 Rule 10 CPC for impleadment. Application allowed on 04/10/2016. Petitioners challenged this order by filing Writ Petition No.11925 of 2016 before Bombay High Court, which was dismissed on 09/06/2017.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 1 Rule 10
- Transfer of Property Act, 1882: Section 52
