# Manoj Kumar Parashar & Anr v. District Judge, Agra & Ors

- **Citation:** (2021) 4 ILRA 131
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-19
- **Case number:** Matter Under Article 227 No. 2029 of 2020
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-parashar-anr-v-district-judge-agra-ors-47036
- **Pages:** 7

## Headnote

(A) Civil Law - Code of Civil Procedure
,1908 - Order 1 Rule 10 read with Order
22 Rule 10 and Section 151 CPC -
Transfer of Property Act,1882 - Section 52
-
Transfer
of
property
pending
suit
132 INDIAN LAW REPORTS ALLAHABAD SERIES
relating thereto - Doctrine of lis pendens -
jurisdiction, power, or control which a
court acquires over property involved in
suit, pending the continuance of the
action, and until final judgment therein -
U.P. Urban Land (Ceiling and Regulation)
Act, 1976 - Section 8(4), Section 33 -
surplus/excess land - The pendente lite
purchaser would be entitled to, or suffer
the same legal rights and obligations of
his
vendor
as
may
be
eventually
determined by the court - mere pendency
of the suit does not prevent one of the
parties to the suit from dealing with the
subject matter of the suit - a transferee
pendente lite is not void ab initio - It only
makes such transfer subject to the rights
of the parties finally determined .(Para -
9,11)

Dispute regarding the property - Petitioners
owner of the land in question - competent
authority declared surplus/excess land - father
of the petitioners filed Misc. Appeal - dismissed
in default - restoration application - execution
power of attorney - petitioners have never
executed any power of attorney - application
under Order 1 Rule 10 read with Order 22 Rule
10 and Section 151 CPC - impleading -
applicant/appellant no.3 - never authorized
anyone to sell or otherwise deal with their share
in the land in question - denied the execution of
power of attorney as well as execution of sale
deeds - impleadment application not legally
maintainable - District Judge allowed the
impleadment application .

HELD:- The petition is devoid of merit is liable to
be dismissed. Since the misc. appeal is pending a
further direction is given to the court below to
decide the aforesaid appeal in accordance with law
most expeditiously and positively within a period of
six months.(Para - 13)

Petition dismissed. (E-6)

List of Cases cited:-

## Text

4 All. Manoj Kumar Parashar & Anr. Vs. District Judge, Agra & Ors.
131
PC 54, it is stated that when a person is
"deemed to be" something, the only
meaning possible is that whereas he is not
in reality that something, the Act of
Parliament or the Legislature requires him
to be treated as if he were.". An
adjudication not fulfilling the requisites of
Clause 2 of Section 2 of the Code cannot be
said to be a "decree". By a legal fiction,
however, certain orders and determinations
are deemed to be "decree" within the
meaning of Section 2(2). When a statutory
fiction is created by a Legislature, it cannot
be ignored. The effect of such legal fiction
is that a position which otherwise is not
present, it is deemed to be present under the
specified circumstances. As stated above,
Section 2(2) of the Code specifically
provides that rejection of a pliant shall be
deemed to be a decree, but the Legislature
has consciously not included the order
dismissing an application for rejection of
plaint filed under Order 7 Rule 11 of the
CPC within the deeming provision and
therefore, it is clear that an order seeking
rejection of the plaint cannot be deemed to
be a decree within the meaning of Section 2
(2) of the CPC. When an order cannot be
deemed to be a decree under Section 2(2)
of the Code, though the order decides an
important aspect of the trial affecting the
very valuable right of the defendant, it
cannot be held that an appeal will lie
against such an order, especially when no
appeal is provided against such an order
under Order 43 CPC.

19. In so far as the present case is
concerned the petitioner has directly
approached this Court under Article 227 of
Constitution of India against the order by
which
an
application
filed
by
the
defendant-petitioner under Order 7 Rule 11
was rejected by the court below.

20. In this view of the matter the
Court is of the opinion that the present
petition is not at all maintainable specially
due to the fact that a statutory alternative
remedy is available to the petitioner to file
a Civil Revision before the revisional court
as provided under Section 115 of the Code
of Civil Procedure.

21. In view of the same as stated
above, without interfering with the order
passed by the court below and without
expressing any opinion on the merits of the
case, the present petition is disposed of
finally, permitting the petitioner to file a
revision as provided under Section 115 of
the Code of Civil Procedure, if so advised.
----------
(2021)04ILR A131
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2021

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Matter Under Article 227 No. 2029 of 2020
(Civil)

Manoj Kumar Parashar & Anr.
 ...Petitioners
Versus
District Judge, Agra & Ors. ...Respondents

Counsel for the Petitioners:
Sri Amit Kumar Mishra

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar Tripathi, Sri Anil
Kumar Sharma

(A) Civil Law - Code of Civil Procedure
,1908 - Order 1 Rule 10 read with Order
22 Rule 10 and Section 151 CPC -
Transfer of Property Act,1882 - Section 52
-
Transfer
of
property
pending
suit
132 INDIAN LAW REPORTS ALLAHABAD SERIES
relating thereto - Doctrine of lis pendens -
jurisdiction, power, or control which a
court acquires over property involved in
suit, pending the continuance of the
action, and until final judgment therein -
U.P. Urban Land (Ceiling and Regulation)
Act, 1976 - Section 8(4), Section 33 -
surplus/excess land - The pendente lite
purchaser would be entitled to, or suffer
the same legal rights and obligations of
his
vendor
as
may
be
eventually
determined by the court - mere pendency
of the suit does not prevent one of the
parties to the suit from dealing with the
subject matter of the suit - a transferee
pendente lite is not void ab initio - It only
makes such transfer subject to the rights
of the parties finally determined .(Para -
9,11)

Dispute regarding the property - Petitioners
owner of the land in question - competent
authority declared surplus/excess land - father
of the petitioners filed Misc. Appeal - dismissed
in default - restoration application - execution
power of attorney - petitioners have never
executed any power of attorney - application
under Order 1 Rule 10 read with Order 22 Rule
10 and Section 151 CPC - impleading -
applicant/appellant no.3 - never authorized
anyone to sell or otherwise deal with their share
in the land in question - denied the execution of
power of attorney as well as execution of sale
deeds - impleadment application not legally
maintainable - District Judge allowed the
impleadment application .

HELD:- The petition is devoid of merit is liable to
be dismissed. Since the misc. appeal is pending a
further direction is given to the court below to
decide the aforesaid appeal in accordance with law
most expeditiously and positively within a period of
six months.(Para - 13)

Petition dismissed. (E-6)

List of Cases cited:-

1. Jayaram Mudaliar Vs Ayyaswami & ors.,
(1972) 2 SCC 200

2. Raj Kumar Vs Sardari Lal & ors., 2004 AIR
SCW 470
3. A Nawab John & ors. Vs V.N. Subramaniyam,
2012 AIR SCW 4248

4. Thomson Press (India) Ltd. Vs Nanak
Builders &Investors Pvt. Ltd. & ors., 2013 (5)
SCC 397

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard Sri Amit Kumar Mishra,
counsel for the petitioner and Sri Anil
Kumar Sharma, counsel for the respondent
no.3.

2. The petitioners have preferred
present
petition
inter-alia
with
the
following prayer :-

"(a) Set aside the impugned order
dated 18.01.2020 passed in Misc. Case
No.235 of 2006 in Misc. Appeal No.487 of
1985 (Shri Krishna Kumar Parashar &
others Vs. State of U.P. & others) passed
by District Judge Agra by which allowed
the impleadment application no.158ka of
respondent no.3 (Annexure No.13 of the
Misc. Petition);"

3. The facts in brief as contained in the
petition is that the dispute is regarding the
property bearing Khasra plots No. 134-A
measuring 2 bighas 11 biswas 9 biswansis
and 7 kachwansis and plot no.134-B
measuring 4 bighas 11 biswas and 10
biswansis equivalent to 16495.8015 sq. meter
situated in Village Tora, Tehsil and District
Agra and the petitioners are owner of the land
in question, which is clear from fasli year
1422-27, i.e., for the year 2015-20. The
competent authority has declared the above
mentioned land in question as surplus/excess
land under Section 8(4) of the Urban Land
(Ceiling and Regulation) Act, 1976 in Case
No.4955/3605 of 1976-77 on 5.6.1980.
Aggrieved against the order dated 5.6.1980,
the father of the petitioners filed Misc.
4 All. Manoj Kumar Parashar & Anr. Vs. District Judge, Agra & Ors.
133
Appeal No.487 of 1985 (Babulal Vs. State of
U.P. and others) under Section 33 of the U.P.
Urban Land (Ceiling and Regulation) Act,
1976. The said misc. appeal was dismissed in
default. Against the order of dismissal
petitioners filed the restoration application
no.4ga, which was registered as Misc. Case
No.235 of 2006 (Krishna Kumar Parashar &
others Vs. State of U.P. and others). The
aforesaid
restoration
application
was
admitted and notice was issued to the
opposite parties and 18.07.2006 was date
fixed for objection and disposal by the
District Judge, Agra. Mr. Anup Kumar
executed power of attorney on 29.01.2016 in
the name of Gaurav Parashar for 1/4 part of
the land in question. On the basis of power of
attorney the Gaurav Parashar on 30.01.2016
executed registered sale deed in the name of
Vikas Jain for the land in question. Manoj
Kumar executed alleged power of attorney on
24.06.2016 in the name of Ashish Upadhay
which was registered on 02.07.2016 for 1/3rd
part of khata no.84 khasra no.134 area 0.1040
hectare and khata no.92 khasra no.134 area
1.6480 hectare. On the basis of alleged power
of attorney Ashish Upadhaya on 4.7.2016
executed registered sale deed in the name of
Vikas Jain for the land in question. On
23.04.2019
respondent
no.3
filed
an
application no.158-ka supported with an
affidavit no.159ka under Order 1 Rule 10
read with Order 22 Rule 10 and Section 151
CPC in Misc. in Case No.235 of 2006 for
impleading
them
as
party
as
applicant/appellant
no.3.
On
26.4.2019
petitioners
filed
reply
174C
to
the
impleadment application dated 23.4.2019 and
submitted
that
petitioners
have
never
executed any power of attorney and never
authorized anyone to sell or otherwise deal
with their share in the land in question and
denied the execution of power of attorney
dated 29.01.2016 and 24.06.2016 and also
denied the execution of sale deeds dated
30.01.2016 and 04.07.2016 and therefore the
impleadment application is not legally
maintainable and is liable to be quashed. The
private respondent has given the reply. The
District
Judge,
Agra
allowed
the
impleadment
application
no.158-ka
of
respondent no.3 on 18.01.2020.

4. Mr. Moti Singh, learned Standing
Counsel
has
vehemently
opposed
the
aforesaid prayer.

5. Normally as a public policy, once a
suit has been filed pertaining to any subject
matter of the property, in order to put an end
to such kind of litigation, principals of lis
pendens has been evolved so that litigation
may
finally
terminate
without
the
intervention of a third party. This is because
of public policy, otherwise no litigation will
come to an end. Therefore, in order to
discourage that same subject matter of
property being subjected to subsequent sale
to a third person, this kind of transaction is to
be checked. Otherwise, litigation will never
come to an end.

6. The doctrin of lis pendens has been
dealt with in great detail by the Hon'ble
Supreme Court in the case of Jayaram
Mudaliar Vs. Ayyaswami and Ors. reported
in (1972) 2 SCC 200. The relevant paragraph
namely paragraph nos.42 to 46 is reproduced
hereinbelow :-

"42. As some argument has been
advanced on the supposed inapplicability of the
general doctrine of lis pendens to the impugned
sales, the nature, the "basis, and the scope of
this doctrine may be considered here.

43. It has been pointed out, in
Bennet "On lis pendens", that, even before
134 INDIAN LAW REPORTS ALLAHABAD SERIES
Sir Francis Bacon framed his ordinances in
1816 "for the better and more regular
administration of justice in the chancery, to
be daily observed" stating the doctrine of
lis pendens in the 12th ordinance, the
doctrine was already recognized and
enforced by Common law Courts. Bacon's
ordinance on the subject said :

"No decree bindeth any that
commeth in bona fide, by conveyance from
the defendant before the bill exhibited, and
is made no party, neither by bill, nor the
order; but, where he comes in pendente
lite, and, while the suit is in full
prosecution, and without any colour of
allowance or privity of the court, there
regularly the decree bindeth; but, if there
were any intermissions of suit, or the court
made acquainted with the conveyance, the
court is to give order upon the special
matter according to justice."

The doctrine, however, as would
be evident from Bennet's work mentioned
above, is derived from the rules of jus
gentium which became embodied in the
Roman Law where we find the maxim :
"Rem (sic) de qua controversia prohibemur
(sic)
in
acrum
dedicare"
(a
thing
concerning which there is a controversy is
prohibited, during the suit from being
alienated). Bell, in his commentaries on the
laws of Scotland said that it was grounded
on the maxim : "Pendente lite nibil
innovandum". . He observed :

"It is a general rule which seems
to have been recognized in all regular
systems of jurisprudence, that during the
pendence of an action, of which the object
is to vest the property or obtain the
possession of. real estate, a purchaser shall
be held to take that estate as. it stands in
the person of the seller, and to be bound by
the claims which shall ultimately be
pronounced."

44. In the Corpus Juris Secundum
(Vol. LIV-p. 570), we find the following
definition :

"Lis pendens literally means a
pending suit; and the doctrine of lis
pendens
has
been
defined
as
the
jurisdiction, power, or control which a
court acquires over property involved in
suit, pending the continuance of the action,
and until final judgment therein."

45. Expositions of the doctrine
indicate that the need for it arises from the
very nature of the jurisdiction of Courts
and their control over the subject of
litigation so that parties litigating before it
may not remove any part of the subject
matter outside the power of the court to
deal with it and thus make the proceedings
infructuous.

46. It is useful to remember this
background of Section 52 of our Transfer
of Property Act which lays down :

"During the pendency in any
Court...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."

7. In the case of Raj Kumar versus
Sardari Lal and others, 2004 AIR SCW
470, the doctrine of lis pendens as
4 All. Manoj Kumar Parashar & Anr. Vs. District Judge, Agra & Ors.
135
expressed in Section 52 of the Transfer of
Property Act was considered by the
Supreme Court. The transfer took place
during the pendency of the suit, but the
Decree passed ex-parte in the suit was
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, and hence, apparently appeared
to be a third party. The Supreme Court
observed that such a person in accordance
with the principles incorporated in Section
52 of the Transfer of Property Act would
be a representative-in-interest of the
defendant-judgement debtor. Under Section
52 of the Transfer of Property Act, a decree
passed against the defendant transferor
would also be executed against the lis
pendens transferee of the defendant, even
though he was not a party to the suit. Such
a person can prefer an appeal being a
person aggrieved. The person who is liable
to be proceeded against in execution of the
decree can file an appeal against the decree.
Such a person can also file an application
for recall under Rule 13 of Order IX of the
CPC, as such, a person stepped into the
shoes of the defendant and the decree was
sought to be executed against him. It was
held by the Supreme Court that a lis
pendens transferee, though not brought on
record under Order XXII Rule 10 of CPC,
is entitled to move an application under
Order IX Rule 13 of CPC to set aside a
decree passed against his transferor, the
defendant in the suit.

8. In the case of A Nawab John and
others versus V.N. Subramaniyam, 2012
AIR SCW 4248, the Supreme Court was
considering a case where a specific
performance of a registered agreement and
delivery of possession was sought by the
plaintiff in a suit before the trial court.
During the pendency of the suit, the sole
respondent V.N. Subramaniam filed an
application, praying that he may be
impleaded as a party-defendant to the said
suit on the ground that he had purchased
the suit property. His application for
impleadment was allowed and the plaint
came to be amended mentioning the details
of subsequent events. The Supreme Court
examined the background of insertion of
the doctrine of lis pendens in Section 52 of
the Transfer of Property Act.

9. The Supreme Court referred to the
language of Section 52 of the Transfer of
Property Act and observed in Paragraph-17
that it is settled legal position that the effect
of Section 52 is not to render transfers
effected during pendency of a suit by a
party to the suit void, but only to render
such transfers subservient to the rights of
the parties to such suit, as may be,
eventually, determined in the suit. In other
words, the transfer remains valid subject, of
course, to the result of the suit. The
pendente lite purchaser would be entitled
to, or suffer the same legal rights and
obligations of his vendor as may be
eventually determined by the court. The
mere pendency of the suit does not prevent
one of the parties to the suit from dealing
with the subject matter of the suit. The
Section only postulates a condition that the
lis pendens alienation will in no manner
affect the rights of the other party under
any decree, which may be passed in the suit
unless the property alienated with the
permission of the Court. In Paras 18 and 19
of the said judgment, the Supreme Court
observed thus:-

"18. Such being the scope of
Section 52, two questions arise: whether a
pendente lite purchaser: (1) is entitled to be
136 INDIAN LAW REPORTS ALLAHABAD SERIES
impleaded as a party to the suit?; (2) once
impleaded what are the grounds on which
he is entitled to contest the suit.

19. This Court on more than one
occasion held that when a pendente lite
purchaser seeks to implead himself as a
party-defendant
to
the
suit,
such
application should be liberally considered.
This Court also held in Saila Bala Dassi v.
Nirmala Sundari Dassi [AIR 1958 SC 394]
that, "justice requires", a pendente lite
purchaser "should be given an opportunity
to protect his rights". It was a case, where
the property in dispute had been mortgaged
by one of the respondents to another
respondent. The mortgagee filed a suit,
obtained
a
decree
and
"commenced
proceedings for sale of the mortgaged
property". The appellant Saila Bala, who
purchased the property from the judgmentdebtor subsequent to the decree sought to
implead
herself
in
the
execution
proceedings and resist the execution. That
application was opposed on various counts.
This Court opined that Saila Bala was
entitled (under Section 146 CPC) to be
brought on record to defend her interest
because, as a purchaser pendente lite, she
would be bound by the decree against her
vendor. There is some divergence of
opinion regarding the question, whether a
pendente lite purchaser is entitled, as a
matter of right, to get impleaded in the suit,
this Court in Amit Kumar Shaw v. Farida
Khatoon [(2005) 11 SCC 403]: (AIR 2005
SC 2209: 2005 AIR SCW 2078), held that:

"Further pending the suit, the
transferee is not entitled as of right to be
made a party to the suit, though the court
has a discretion to make him a party. But
the transferee pendente lite can be added
as a proper party if his interest in the
subject-matter of the suit is substantial and
not just peripheral. A transferee pendente
lite to the extent he has acquired interest
from the defendant is vitally interested in
the litigation, where the transfer is of the
entire interest of the defendant; the latter
having no more interest in the property
may not properly defend the suit. He may
collude with the plaintiff. Hence, though
the plaintiff is under no obligation to make
a lis pendens transferee a party, under
Order 22 Rule 10 an alienee pendente lite
may be joined as party. As already noticed,
the court has discretion in the matter which
must be judicially exercised and an alienee
would ordinarily be joined as a party to
enable him to protect his interests. The
court has held that a transferee pendente
lite of an interest in immovable property is
a representative-in-interest of the party
from whom he has acquired that interest.
He is entitled to be impleaded in the suit or
other proceedings where his predecessorin-interest is made a party to the litigation;
he is entitled to be heard in the matter on
the merits of the case."

The preponderance of opinion of
this Court is that a pendente lite
purchaser's application for impleadment
should normally be allowed or "considered
liberally." (emphasis supplied)

10. In the case of Thomson Press
(India) Limited versus Nanak Builders
and Investors Private Limited and others
2013 (5) SCC 397, the Supreme Court was
considering an appeal arising out of a suit
for specific performance of prior agreement
to sell filed by the buyer against the
original owner/transferor/seller pendente
lite. In Paragraph 26 to 29 of the said
judgment,
the
Supreme
Court
after
referring to Section 52 of the Transfer of
Property Act, observed that transfer during
pendency of suit does not automatically
4 All. Munna Singh Vs. State of U.P. & Anr.
137
render such transfer void. The provisions of
the Section only render such transfers
subservient to the rights of the parties to a
litigation. The transferees acquiring any
immovable property during litigation over
it, are held to be bound, by application of
the doctrine of lis pendens and by the
decree passed in the suit even though they
may not have been impleaded in it. "The
whole object of the doctrine of lis pendens
is to subject parties to the litigation, as well
as others who seek to acquire rights in
immovable property, which are the subject
matter of litigation, to the power and
jurisdiction of the Court so as to prevent
the object of a pending action from being
defeated." The Supreme Court further
observed in Paragraphs 55 and 56 that a
transferee pendente lite can be added as a
party to the suit lest the transferee suffered
prejudice on account of the transferor
losing interest in the litigation post such
transfer. Sometimes a transferor pendente
lite may not even defend the title properly
as he has no interest in the same or may
collude with the plaintiff in which case the
interest of the purchaser pendente lite will
be ignored. To avoid such situations,
transferee pendente lite can be added as a
party defendant to the suit provided his
interest
is
substantial
and
not
just
peripheral. This is particularly so where the
transferee pendente lite acquires the interest
in the entire estate that forms the subject
matter of the dispute.

11. It is evident from a careful
consideration of latest judgments of the
Supreme Court dealing with Section 52 of
Transfer of Property Act that the Supreme
Court has emphasized that a transferee
pendente lite is not void ab initio. It only
makes such transfer subject to the rights of
the parties finally determined.

12. In the facts and circumstances
of the case, the Court is of the opinion that
the order impugned, which is under
challenge,
does
not
want
for
any
interference by this Court.

13. The petition is devoid of merit is
liable to be dismissed. Since the misc.
appeal is pending a further direction is
given to the court below to decide the
aforesaid appeal in accordance with law
most expeditiously and positively within a
period of six months from the date of
production of certified copy of this order
but after after giving opportunity to the
parties concerned and without granting
unnecessary adjournments to either of the
parties.

14. Accordingly, present petition is
dismissed.
----------
(2021)04ILR A137
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.03.2017

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matter Under Article 227 No. 6423 of 2019 (Crl)

Munna Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Sanjive Kumar Gupta, Sri Jai Prakash
Singh-I

Counsel for the Respondents:
A.G.A.

(A) Civil Law - The Essential Commodities
Act,
1955
-
Sections
3/7,
6A

-