LexRAJ KUMAR versus SARDARI LAL
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A B RAJ KUMAR V. SARDARILAL JANUARY 20, 2004 [R.C. LAHOTI AND ASHOK BHAN, JJ.] Code a/Civil Procedure, 1908-0rder 9 Rule 13, Order 22 Rule JO and Section 146-Transfer of property pending suit thereon-Suit decreed ex- C parte against transferor-Setting aside of decree not by transferor but by a person who did not come or was not brought on record promptly- Maintainability of-Held: Such a person being a lis pen dens transferee, though not brought on record under Order 22 Rule JO is entitled to move application under Order 9 Rule 13 to set aside the decree passed against his transferor- defendant in suit-Word 'he· under Order 9 Rule 13 is not to be construed D rigidly and restrictively so as to exclude person stepping into the shoes of transferor-defendant, from moving an application for setting aside the ex- parte decree especially in view of Section 146. Maxim: E Ut lite pendente nihil innovetur-Expresses doctrine of /is pendens- Transfer of Property Act. 1882 Section 52. During pendency of the suit relating to an immovable property, respondent No.4 purchased the suit property from respondent No.2 and 3-defenclants by registered sale deed. Respondent No.4 was not aware of F the pendency of the suit. Suit was decreed ex-parte against respondent No.2 and 3. Respondent No.4 filed an application under Order 9 Rule 13 CPC for setting aside the decree, prayed under Order 22 Ruic l 0 for being brought on record and also for condoning the delay in filing the application. Trial Court condoned the delay and allowed the application G holding that sufficient cause for setting aside the decree was made out. Appellant filed civil revision contending that an application under Order 9 Rule 13 can be filed by defendant only. High Court dismissed the same. Hence the present appeal. Appellant contended that an application under Order 9 Rule 13 CPC If 838 .. RAJ KUMAR v. SARDARI LAL 839 can be filed by defendant only; and that respondent No.4 is a transferee A pendente lite and having not taken steps promptly under Order 22 Rule 10 for being brought on record, he is bound by the result of the suit and must suffer the consequences of an adverse decree passed against his vendors who have not chosen to challenge the ex-pa rte decree. Dismissing the appeal, the Court HELD: I.I. The doctrine of /is pendens expressed in the maxim '111 file pendente nihil innovetur-during a litigation nothing new should be introduced, is statutorily incorporated in Section 52 of the Transfer of Property Act, 1882. 1841-H; 842-AI 1.2. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successfl!I plaintiff of the fruits of B c the decree. In case of an assignment, creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 CPC confers a discretion on the Court hearing the suit to grant leave for the person in D or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a /is pendens transferee on record is not as of right but in the discretion of the Court. A /is pendens transferee from the defendant, though not arrayed as a party in the suit, is still a person claiming under the defendant and remains bound by the decree. This principle of law is recognized in different perspective by Rule 16 of Order E 21 stating transfer or assignment inter vivas or by operation of law made by the plaintiff-decree-holder. The transferee may apply for execution of the decree of the Court which passed it and the decree will be available for execution in the same manner and subject to the same conditions as if the application were made by the decree-holder. Furthermore, the F explanation to Rule 16 states that the operation of Section 146 CPC is allowed to prevail independent of Order 21 Rule 16 CPC. 1842-A-C; 842-G-H; 843-AI 1.3. The transferee pendente li1e is treated in the eye of law as a representative-in-interest of the judgment-debtor and held bound by the G decree passed against the judgment debtor though neither the defendant has 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 22 Rule 10 CPC. Further a decree passed against the defendant is available for execution against the transferee or assignee of the defendant-judgment-debtor and it does H 840
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