# Ram Lakhan & Ors v. Raebareli Vikas Pradhikaran & Ors

- **Citation:** (2016) 5 ILRA 100
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-11
- **Bench:** Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-lakhan-ors-v-raebareli-vikas-pradhikaran-ors-43715
- **Pages:** 14

## Text

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100 INDIAN LAW REPORTS ALLAHABAD SERIES
of the UP Act No.13 of 1972. This court is therefore of the firm view that the amendment sought by
the defendant was hit by the proviso to Rule 17 of Order VI CPC therefore its rejection calls for no
interference.

20. The revision is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.08.2016

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.

Second Appeal Defective No.- 178 Of 2014

Ram Lakhan & Ors. ...Appellants
Versus
Raebareli Vikas Pradhikaran & Ors. ...Respondents

Councel For Appellants:
Prashant Singh Gaur, Ankit Srivastava

Councel For Respondents:
Hari Om Singh,Mohd. Aslam Khan, Dwijendra Mishra

HELD:-

A person who was not a party to the proceedings before the Trial Court or the First Appellate Court can
maintain an appeal with leave of the Court, provided such person is a "person aggrieved" by the
decree.

A "person aggrieved" is one whose legal rights are prejudicially or adversely affected by the
judgment or decree, and not one who suffers merely a psychological or imaginary injury.

Sections 96 and 100 CPC do not restrict the right of appeal only to parties on record; any person
prejudicially affected by a decree may appeal with leave of the appellate court.

A transferee pendente lite is not rendered illegal or void ab initio by Section 52 of the Transfer of Property
Act; such transfer remains subordinate to the rights declared in the decree.

A lis pendens transferee:

Is bound by the decree passed in the pending litigation;

Steps into the shoes of the transferor;

May seek leave of the Court to be impleaded or to maintain an appeal if his interest is substantial.
5 All. Ram Lakhan & Ors. Vs Raebareli Vikas Pradhikaran & Ors.

101
Section 52 of the Transfer of Property Act does not extinguish the transfer; it only subordinates the
transferee's rights to the outcome of the litigation.

Section 146 CPC permits proceedings to be taken by or against a person claiming under another, and
Order XXII Rule 10 CPC enables continuation of proceedings by or against a transferee pendente lite with
leave of the Court.

The fact that the transferee purchased the property during pendency of litigation does not bar him from
seeking leave to appeal, if refusal of such leave would result in serious prejudice to his proprietary rights.

Technicalities of procedure must not override substantial justice; a person having sufficient interest in
the subject matter and whose rights are affected ought to be granted leave to appeal.

In the present case:

The appellants are successors-in-interest of Raebareli Development Authority;

The decree of the First Appellate Court directly affects their possession and proprietary rights;

Raebareli Development Authority has not filed any appeal;

Refusal of leave would confirm the decree to the serious prejudice of the appellants.

Consequently, the appellants are "persons aggrieved", and leave to appeal is granted.

CASE LAW CITED:-

Harvinder Singh v. Paramjit Singh & Ors.
(2014) 12 SCC 188

Amit Kumar Shaw & Anr. v. Farida Khatoon & Anr.
(2005) 11 SCC 403

Thomson Press (India) Ltd. v. Nanak Builders & Investors (P) Ltd. & Ors.
(2013) 5 SCC 397

Hukum Chand v. Om Chand & Ors.
(1987) 2 SCC 486

Ayaaubkhan Noorkhan Pathan v. State of Maharashtra & Ors.
(2013) 4 SCC 465

Jatan Kumar Golcha v. Golcha Properties (P) Ltd.
AIR 1971 SC 374

State of Punjab v. Amar Singh & Anr.
AIR 1974 SC 994

Baldev Singh v. Surinder Mohan Sharma & Ors.
(2003) 1 SCC 34

Municipal Corporation of the City of Ahmedabad v. Chandulal Shamaldas Patel & Ors.
(1971) 3 SCC 821
102 INDIAN LAW REPORTS ALLAHABAD SERIES

Sri Jagannath Mahaprabhu v. Pravat Chandra Chatterjee & Ors.
AIR 1990 Ori 1 (FB)

Purshottam Das Verma v. 2nd Addl. District Judge, Allahabad & Ors.
1990 (8) LCD 136

Shri Gaurdham Housing Co-operative Society Ltd. v. Behari Lal & Ors.
AIR 1974 All 65 (FB)
(Delivered by Hon'ble Ritu Raj Awasthi, J.)

1. Heard Mr. Prashant Singh Gaur and Mr. Ankit Srivastava, learned counsel for appellants as
well as Mr. Hari Om Singh, learned counsel for respondents no. 1 and 2, Mr. Dwijendra Mishra,
learned counsel for respondent no. 3 and Mr. Mohd. Arif Khan, learned senior Advocate assisted
by Mr. Mohd. Aslam Khan, learned counsel for respondents no. 4, 5 and 6.

2. This second appeal has been filed by the appellants against the judgment and decree dated
02.03.2013 passed by the Court of learned Additional District and Sessions Judge, Ex-Cadre-1,
Raebareli in Regular Civil Appeal No. 28 of 2010 (Dinendra Singh and another vs. Raebareli
Development Authority and others) which has arisen out of the judgment and order dated
13.1.2010 passed by the Civil Judge (Senior Division), Court No. 14, Raebareli, in Regular Suit
No. 194 of 1993 (Dinendra Singh and another Vs. Raebareli Development Authority and others).

3. Two applications for leave to appeal have been preferred by the appellants. One (C.M.A.
No. 70720 of 2016) on behalf of all the appellants by Mr. Prashant Singh Gaur, learned counsel for
appellants whereas another (C.M.A. No. 70794 of 2016) on behalf of appellants no. 2 and 5 by Mr.
Ankit Srivastava, learned counsel for appellants.

4. The appellants-applicants were not party before the Trial Court as well as the First
Appellate Court and they have filed the instant second appeal claiming themselves to be successorin-title of respondent no. 3, Raebareli Development Authority as they have purchased the property
in question through a valid conveyance-deed. They claim themselves to be real "aggrieved party".

5. In order to put the record state, it is to be noted that the instant appeal has been filed with an
application under Section 5 Indian Limitation Act for condonation of delay. On 26.7.2016, when
the appeal was listed before the Court, Mr. Hari Om Singh, learned counsel for respondents had
raised objection regarding maintainability of the appeal on the ground that the instant second
appeal is not maintainable without leave of the Court. The Court had granted time to the appellants
to move appropriate application seeking permission to appeal. The order dated 26.7.2016, for
convenience, is reproduced below:

"All the respondents are represented.
5 All. Ram Lakhan & Ors. Vs Raebareli Vikas Pradhikaran & Ors.

103

Mr. Hari Om Singh, learned counsel for respondents has raised objection regarding
maintainability of the appeal on the ground that the second appeal is not maintainable without
leave of the Court.

Learned counsel for appellants prays for and is granted 24 hours time to move
appropriate application seeking permission to appeal giving copy of the same to the counsel for
other side, who may file objections, if any, within three days thereafter.

List next week."

6. The applications for leave to appeal were filed by the appellants thereafter which are to be
decided first.

7. Learned counsels for appellants-applicants submit that they are successor-in-title of
respondent no. 3, Raebareli Development Authority as they had purchased the property in question
through a valid conveyance-deed. The respondent no. 3, Raebareli Development Authority
mischievously and in collusion with respondents no. 1 & 2 have not filed any second appeal against
the impugned judgment and decree, in advantage whereof the respondents no. 1 and 2 are trying to
dispossess the appellants-applicants from the property in question. The appellants are bona fide
purchaser for full value of the property in question and are in actual possession of the property. In
the event of their rights not being secured and protected by the respondent no. 3, they have no other
option but to approach this Court by filing the instant appeal.

8. It is submitted by learned counsels for appellants-applicants that they are the real "aggrieved
party" and have right to appeal being the "aggrieved party". It is contended that Section 146 as well
as Order XXII Rule 10 Code of Civil Procedure, 1908 (for short "Code") protects the right of the
appellants to institute and contest these proceedings as "aggrieved party".

9. Mr. Prashant Singh Gaur, learned counsel for appellants-applicants submits that the Apex
Court in the case of Amit Kumar Shaw and another vs. Farida Khatoon and another1 has dealt in
detail the doctrine of lis pendense. The transferee pendente lite can be added as a proper party if his
interest in the subject matter of suit is substantial and not just peripheral.

10. In the case of Sri Jagannath Mahaprabhu vs. Pravat Chandra Chatterjee and others2,
the Full Bench of Orissa High Court has considered the scope of Section 52 Transfer of Property
Act and has held that the effect of Section 52 of Transfer of Property Act is that a lis pendense
transferee is bound by the decree whether on contest, ex parte or on compromise. The plaintiff is
not bound to implead lis pendense transferee, however, the Court in its discretion can implead him
as a property party under Order XXII Rule, 10 (1) CPC.

11. Learned counsel for the appellant-applicants also relies on the judgment of the Apex Court
in the case of Thomson Press (India) Limited vs. Nanak Builders and Investors Private Limited
and others3 wherein the Apex Court while considering the effect of Section 52 Transfer of Property
104 INDIAN LAW REPORTS ALLAHABAD SERIES
Act has held that the transferee pendente lite is neither illegal nor void ab initio but remains
subservient to rights eventually determined by Court in pending litigation.

12. It is submitted that in the case of Hukum Chand vs. Om Chand and Others4 the Apex
Court has held that the transfer of interest of plaintiff pendente lite would not affect the litigation
and the transferee merely steps into the shoes of its predecessor-in-interest whether he is impleaded
as a party or not. Such transferee becomes bound by the result of the eviction suit including any
relevant
directions, terms and conditions set out in the decree. Such transferee may, of course, seek leave of
the Court to come on record.

13. It is contended that the Apex Court in the case of Harvinder Singh vs. Paramjit Singh
and Others5 has dealt in detail the maintainability of appeal filed under Sections 96 as well as 100
CPC and it has been categorically held that a person whose legal rights are prejudicially or
adversely affected by a decree is the "person aggrieved" by such decree and he can maintain appeal
against that decree whether he is a party to the earlier proceedings or not. Reliance has been placed
in this regard on paragraphs 17 onwards.

14. Mr. Ankit Srivastava, learned counsel for appellants has relied on the judgment of this
Court in the case of Purshottam Das Verma vs. 2nd Addl. Distt. Judge, Allahabad and Others6
wherein it has been held that the effect of Section 52 Transfer of Property Act is not to wipe out a
sale pendente lite altogether but to subordinate it to the rights based on the decree in the suit.

15. Mr. Mohd. Arif Khan, learned Senior Advocate as well as Mr. Hari Om Singh, learned
counsel appearing on behalf of the respondents opposing the applications for leave to appeal submit
that the applications for leave to appeal have been filed under misconception which is deliberate.
The averments made in para 2 of the applications are not correct. No direction has been issued by
the Court to the appellants to move any application seeking leave to appeal. The appellants having
not filed any application for leave to appeal at the time of filing of the appeal and the said appeal
having been filed with delay, it is not maintainable and liable to accordingly dismissed.

16. It is also submitted that the appellants had purchased the property in dispute knowingfully-well that the litigation between the plaintiff of the suit and the defendant of the suit is pending
in the Court. The appellants did not seek permission of the Court to purchase the property and,
therefore, under Section 52 Transfer of Property Act they do not have any right or interest in the
property and they cannot be "aggrieved party".

17. It is submitted that the remedy for the appellants lies somewhere else i.e., they may file a
suit against respondent no. 3, Raebareli Development Authority in case the property in dispute was
wrongly transferred to them without there being any right of transfer of Raebareli Development
Authority.
5 All. Ram Lakhan & Ors. Vs Raebareli Vikas Pradhikaran & Ors.

105

18. It is wrong to say that the appellants are the successor-in-title of Raebareli Development
Authority. The Court has held that in the property in dispute the defendants of the suit Raebareli
Development Authority and Nagar Palika neither have any interest nor they have any right or title.
It is denied that Raebareli Development Authority are in connivance with respondents no. 1 and2,
therefore, not chosen to file any appeal. It is also denied that the appellants are the bona fide
purchasers.

19. It is submitted that the applications for leave to appeal in the manner in which it has been
filed is liable to be rejected as first of all there is no direction of the Court to file any such
applications and secondly the applications for leave to appeal at this stage are not maintainable.

20. In support of his submissions, Mr. Mohd. Arif Khan, learned Senior Advocate has placed
reliance on the judgment of the Apex Court in the case of The Municipal Corporation of the City
of Ahmedabad vs. Chandulal Shamaldas Patel and Others7wherein it has been held that appeal
filed by non-aggrieved party is not maintainable. He has also placed reliance on the Full Bench
judgment of this Court in the case of Shir Gaurdham Housing Co-operative Society Ltd. vs.
Behari Lal and others8.

21. I have considered the submissions made by the parties' counsel and perused the records.

22. Long and lengthy arguments have been advanced from both the sides on the applications
for leave to appeal.

23. It is to be noted that the instant second appeal has been filed with application for
condonation of delay. The delay in filing the appeal has not yet been condoned and the appeal has
not yet been admitted. Objections to the application for condonation of delay have been filed by the
respondents. While considering the question of condonation of delay in filing of appeal, an
objection with regard to maintainability of the appeal was raised by Mr. Hari Om Singh, learned
counsel for respondents submitting therein that the instant appeal is not maintainable without leave
of the Court as the appellants were not party to the proceedings before the lower Courts. At this
stage, a request was made by the counsel for the appellants to grant them time to move application
for leave to appeal. The Court considering the submissions made by the parties' counsel had
granted 24 hours time to the appellants' counsel to move appropriate application seeking
permission to appeal, giving copy of the same to the counsel for other side, who may file
objections, if any, within three days thereafter.

24. The Apex Court in the case of Harvinder Singh (supra) has considered the right of a
person to file an appeal against a decree. It has been held that any person whose legal right
prejudicially or adversely affected by a decree is a "person aggrieved" by such decree and he can
maintain the appeal against that decree. The Court has noted that in case of Jatan Kumar Golcha
vs. Golcha Properties (P) Ltd. it has been held that it is well settled that a person who is not a party
to the suit may prefer an appeal with the leave of the appellate court and such leave should be
granted if he would be prejudicially affected by the judgment. The Apex Court also noted that in
106 INDIAN LAW REPORTS ALLAHABAD SERIES
the case of Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra it has been observed that the
expression "person aggrieved" does not include a person who suffers from a psychological or an
imaginary injury, a person aggrieved must, therefore, necessarily be one whose right or interest has
been adversely affected or jeopardized. Relevant paragraphs 17, 18, 19, 20, 24 and 25 in this regard
are reproduced below:

"17. Presently, it is apt to note that Sections 96 and 100 of the Code make provisions for
preferring an appeal from any original appeal or from a decree in an appeal respectively. The
aforesaid provisions do not enumerate the categories of persons who can file an appeal. If a
judgment and decree prejudicially affects a person, needless to emphasize, he can prefer an appeal.
In this context, a passage from Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties Private Ltd.
is worth noting: -

"It is well settled that a person who is not a party to the suit may prefer an appeal with
the leave of the appellate Court and such leave should be granted if he would be prejudicially
affected by the judgment."

18. In State of Punjab v. Amar Singh and another, Sarkaria, J., while dealing with the
maintainability of an appeal by a person who is not a party to a decree or order, has stated thus: -

"84. Firstly there is a catena of authorities which, following the doctrine of Lindley, L.J.,
in re Securities Insurance Co., (1894) 2 Ch 410 have laid down the rule that a person who is not a
party to a decree or order may with the leave of the Court, prefer an appeal from such decree or
order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. As a
rule, leave to appeal will not be refused to a person who might have been made ex nominee a party
- see Province of Bombay v. W.I. Automobile Association, AIR 1949 Bom141; Heera Singh v.
Veerka, AIR 1958 Raj 181 and Shivaraya v. Siddamma, AIR 1963 Mys 127; Executive Officer v.
Raghavan Pillai, AIR 1961 Ker 114. In re B, an Infant (1958) QB 12; Govinda Menon v.
Madhavan Nair, AIR 1964 Ker 235."

19. In Baldev Singh v. Surinder Mohan Sharma and others, a three Judge-Bench opined
that an appeal under Section 96 of the Code would be maintainable only at the instance of a person
aggrieved by and dissatisfied with the judgment and decree. In the said case, while dealing with the
concept of ''person aggrieved', the Bench observed thus:-

"A person aggrieved to file an appeal must be one whose right is affected by reason or
the judgment and decree sought to be impugned. It is not the contention of Respondent 1 that in the
event the said judgment and decree is allowed to stand, the same will cause any personal injury to
him or shall affect his interest otherwise."

Be it noted, in the said case, the challenge in appeal was to the dissolution of marriage of
the appellant therein and his first wife which, this Court held, would have no repercussion on the
5 All. Ram Lakhan & Ors. Vs Raebareli Vikas Pradhikaran & Ors.

107
property in the suit and, therefore, the High Court was not justified in disposing of the civil
revision with the observation that the revisionist could prefer an appeal.
20. In Sahadu Gangaram Bhagade v. Special Deputy Collector, Ahmednagar and another, it was
observed that:-

"8..........the right given to a respondent in an appeal is to challenge the order under
appeal to the extent he is aggrieved by that order. The memorandum of cross-objection is but one
form of appeal. It takes the place of a cross appeal."
In the said decision, emphasis was laid on the term "decree".

24. In this context, we may refer to a recent pronouncement in Ayaaubkhan Noorkhan
Pathan v. The State of Maharashtra & ors. wherein this Court has held thus: -

"10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be
defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression,
"person aggrieved" does not include a person who suffers from a psychological or an imaginary
injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been
adversely affected or jeopardized. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New
York, AIR 1974 SC 1719; and State of Rajasthan & Ors. v. Union of India & ors., AIR 1977 SC
1361)."

25. Though the said judgment was delivered in a different context, yet it is applicable to
the obtaining factual matrix regard being had to the conception of legal injury. Thus, indubitably,
the present appellant was a person aggrieved and was prejudicially affected by the decree and,
hence, the appeal could not have been thrown overboard treating as not maintainable."

25. In the case of Amit Kumar Shaw (supra), it has been observed by the Apex Court that the
doctrine of lis pendense applies only where the lis is pending before a Court. 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. Relevant paragraphs
16, 17 and 18 of the judgment on reproduction read as under:

"16. The doctrine of lis pendens applies only where the lis is pending before a Court.
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, whether 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 XXII 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
108 INDIAN LAW REPORTS ALLAHABAD SERIES
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-ininterest of the party from whom he has acquired that interest. He is entitled to be impleaded in the
suit or other proceedings where the transferee pendente lite is made a party to the litigation; he is
entitled to be heard in the matter on the merits of the case.

17. In the instant case, the applications for substitution were filed by the respective
appellants in the second appeals which are still pending on the file of the High Court though it was
filed in the year 1993. The appellants have properly, sufficiently and satisfactorily explained the
delay in approaching the Court. We see bona fide in their explanation in not coming to the Court at
the earliest point of time. Therefore, the appellants who are transferees pendente lite should be
made as parties to the pending second appeals as prayed for by them. In our opinion, the High
court has committed serious error in not ordering the applications for substitution filed by the
appellants. In our view, the presence of the appellants are absolutely necessary in order to decide
the appeals on merits. Since the High Court has committed error by rejecting the appellants'
applications for substitution treating the same as additional parties and thereby rendering the
appellants non-suited. We have no hesitation in setting aside the said orders and permit the
appellants to come on record by way of substitution as prayed for. The High Court proceeded on a
wrong premise that the appellants had made the application for addition of party whereas the
application under consideration was for substitution as the owner had sold the suit property to the
appellants and had no interest in the pending litigation.

18. In our opinion, the presence of the appellants was absolutely necessary since the
appellants are the only persons who has got subsisting right, title and interest in the suit. The
appellants are at liberty to contest the matter on merits."

26. In the case of Sri Jagannath Mahaprabhu (supra) the Full Bench of Orissa High Court
while considering the scope of Section 52 Transfer of Property Act has held that even if a lis
pendense transferee is not a necessary party and the plaintiff can ignore the transfer even if he has
notice thereof and a decree or order obtained by him would be binding on the lis pendense
transferee, when a motion is made by the lis pendents transferee to be impleaded as party, the Court
may, in exercise of its discretion judicially, add him as a proper party to prevent multiplicity of
suits. Relevant paragraph 9 of the judgment on reproduction read as under:

"9. Though in Basant Ram's case (ILR (3974) Him Pra 276) (supra), it has been held that
a lis pendens transferee is not a proper party, we are of the view that even if a lis pendens
transferee is not a necessary party and the plaintiff can ignore the transfer even if he has notice
thereof and a decree or order obtained by him would be binding on the lis pendens transferee,
when a motion is made by the lis pendens transferee to be impleaded as a party, the court may, in
exercise of its discretion judicially, add him as a proper party to prevent multiplicity of suits."

27. In the case of Thomson Press (India) Ltd. (supra), the Apex Court has considered a case
where the property in question was transferred despite having notice and knowledge of injunction
5 All. Ram Lakhan & Ors. Vs Raebareli Vikas Pradhikaran & Ors.

109
granted by the Court below in such pending suit. It was held that the transfer pendente lite is neither
illegal nor void ab initio but remains subservient to rights eventually determined by Court in
pending litigation. It was also held that the transfer in favour of purchaser pendente lite is effective
in transferring title subject to certain obligations as decision of Court in a suit is binding not only
on litigating parties but also on those who derive title pendente lite.

28. In the case of Hukum Chand (supra) the Apex Court has held that transfer of interest of
plaintiff pendente lite would not affect the progress of litigation and it will remain unaffected,
except when transfer results in wiping out cause of action itself or deprives transferee of the right to
the decree, for example if cause of action were personal to original plaintiff. Relevant paragraph 9
of the judgment on reproduction read as under:

"9. As to the second contention, we have already pointed out that the appellant tenant has
not taken any steps for bringing the tranferee or the assignee of the respondent landlord on record
in this appeal in spite of his having acquired knowledge as early as in November 1988, of the
respondent having transferred his title in the suit property through sale deeds. The sale deeds are
registered deeds. The appellant tenant could have obtained copies thereof and placed on record the
terms and conditions of the transfer, which has not been done. In the absence of any application
under Order 22 Rule 10 CPC having been filed by the appellant tenant and in the absence of the
relevant transfer deeds having been brought on record, we are handicapped in determining the
terms and conditions of the transfer effected by the respondent landlord. The situation is coverned,
and is taken care of, by Section 52 of the Transfer of Property Act and Order 22 Rule 10 CPC. The
transfer is lis pendense. In case of any assignment or creation of any interest during the pendency
of a suit, under Order 22 Rule 10 CPC, the suit may, by leave of the Court, be continued by or
against the person to or upon whom such interest has come or devolved. The Rule is an enabling
one and permissive in nature. A Full Bench of the Patna High Court has held in Mahant Sukhdeo
Das v. Kashi Prasad Tiwari that in spite of a devolution of interest having taken place during the
pendency of a litigation, the same can continue. It is for the assignee to appear in the suit at any
stage and defend himself with the leave of the court but he cannot seek to be brought on record as
of right. The discretion vests in the court. Though ordinarily the leave will not be refused,
nevertheless the court would exercise its discretion in granting the leave on the facts and
circumstances of a given case. The tenant having suffered a decree from the High Court, it was for
him to make an appropriate application and to seek leave of the court for prosecuting appeal
against the person in whom the right and title in the suit property has come to vest. It was also
open to such tranferee pendente lite to seek leave of the court for coming on record. The Full
Bench has opined in Sukhdeo Das case that such assignment or devolution of right during the
pendency of the litigation did not arrest the progress of the litigation. We agree with the view taken
by the Full Bench. In our opinion, the only exception is when the transfer of property forming the
subject-matter of the suit, pendente lite, results in wiping out the cause of action itself or deprives
the transferee of the right to decree, such as where the cause of action was personal to the original
plaintiff. Otherwise the only result is that such transferee steps into the shoes of his predecessor-ininterest and remains bound by the result of the suit and would not, at a later stage, be permitted to
raise the plea that he was not bound by the result of the litigation because he was not brought on
110 INDIAN LAW REPORTS ALLAHABAD SERIES
record of the suit and impleaded as a party. The second contention of the learned counsel for the
appellant also fails."

29. This Court in the case of Purshottam Das Verma (supra) has held that the effect of the
provision of Section 52 Transfer of Property Act is not to wipe out a sale pendente lite altogether
but to subordinate it to the rights based on the decree in the suit. It does not create any bar in the
way of the transferee to proceed with the suit. The decree will have binding effect on the vendee,
though not party in the suit. Execution proceeding are continuation of the suit. Relevant paragraphs
30 to 36 are reproduced herebelow:

"30. Durga Prasad Nigam has brought it on record that after filing the suit he executed a
sale deed in favour of Smt. Janki Pandey on 16-1-84. This fact is not disputed. The only question is
whether Smt. Janki Pandey had any right to file the application on 20-5-86 for setting aside the
compromise decree.

31. Section 146 of the Civil Procedure Code reads as follows.

"Save as otherwise provided by this Code or by any law for the time being in force, where
any proceeding may be taken or application made by or against any person, then the proceeding
may be taken or the application may be made by or against any person claiming under him."

32. There is no dispute that Smt. Janki Pandey never chose to proceed with the suit after
the sale deed was executed in her favour. She was watching her interest and felt that it was safe in
the hands of Durga Prasad Nigam but it did not debar her from coming in the picture at the time of
the execution of the suit. Execution proceedings were the continuation of suit in proceeding as
contemplated under Section 52 of the Transfer of Property Act.

33. Order 22 Rule 10 of the Civil Procedure Code which provides for procedure in case
of assignment before final order in the suit runs as follows:

"In the case of an assignment, creation or devolution of any interest during the pendency
of a suit, the suit may, by leave of the court, be continued by or against the person to or upon whom
such interest has come or devolved."

34. It empowered her to proceed with the execution proceeding.

35. Accordingly, I agree with the view of the trial court that Smt. Janki Pandey had a
right to file an application for setting aside the order dated 7-5-86 and the order has been rightly
set aside.

36. No other point was pressed for consideration. The impugned orders have resulted
into substantial justice between the parties. I do not find any error of law apparent on the face of
record. Accordingly the writ petitions are dismissed with cost."
5 All. Ram Lakhan & Ors. Vs Raebareli Vikas Pradhikaran & Ors.

111

30. Learned counsel for respondents, on the other hand, have relied on the judgments of the
Apex Court in the case of The Municipal Corporation of the City of Ahmedabad (supra) where
the Court has held that an appeal by non-aggrieved party is not maintainable.

31. The counsel for the respondents has also relied on the Full Bench judgment of this Court in
the case of Shri Gaurdham Housing Co-operative Society Ltd. (supra) particularly paragraph 12
which on reproduction reads as under:

"12. We have no doubt, therefore, that the society would be person interested in the
subject matter. We also agree with the view expressed by the learned Judges of the Bombay High
Court in the case of Bombay Province v. W.I. Automobile Association (Supra) that technicalities
should never be permitted to over ride substantial justice and a person though may not be strictly a
party to the proceedings in that court below should be given leave to file an appeal if he has
sufficient interest in the subject matter and his interest has been prejudicially affected."

32. Bare perusal of para 12 of the aforesaid judgment clearly indicates that it has been
observed by the Full Bench that the technicalities should never be permitted to override substantial
justice and a person though may not be strictly a party to the proceedings in that Court below
should be given to leave to file an appeal if he has sufficient interest in the subject matter and his
interest has been prejudicially affected.

33. It is but evident from the above discussed judgments that there is no dispute to the legal
proposition that an appeal is maintainable against a decree by a person who is a "person aggrieved"
and non-aggrieved party cannot maintain the appeal filed under Section 96 or 100 CPC.

34. In the instant case, a suit for permanent and mandatory injunction was filed by respondents
no. 1 and 2 against respondents no. 3 to 8. It was dismissed on merit vide judgment and order dated
13.1.2010 holding that the entries relied by the plaintiff were neither in consonance with the
revenue records and the location of the property in dispute cannot be established. The property in
question is shown as nazool land in the management of the Collector, as such, ownership status can
never be acquired by the plaintiffs-respondents no. 1 and 2. Respondents no. 1 and 2 thereafter had
filed Regular Civil Appeal No. 28 of 2010 which was allowed vide judgment and order dated
02.03.2013 whereby the judgment and order of the Trial Court was set-aside and suit for permanent
injunction was allowed granting permanent injunction in favour of respondents no. 1 and 2.
Respondent no. 3 was restrained from interfering in the possession and title of the plaintiff over the
property in dispute without due process of law and shall not dispossess them without adopting due
procedure.

35. During pendency of suit respondent no. 3, Raebareli Development Authority had
sold/executed agreement to sale the land in question subsequent to which the appellants were
delivered actual physical possession of their respective plots and they had also erected boundary
walls. The appellants had no knowledge about the proceedings either, when it appeared before the
Trial Court or the appellate Court. It is alleged that the land in question belongs to a Colony
112 INDIAN LAW REPORTS ALLAHABAD SERIES
developed by Raebareli Development Authority on the basis of the land having been given by the
State Government for that purpose. The appellants after coming to know about the decision passed
in Regular Civil Appeal No. 28 of 2010 have filed the instant second appeal without any delay.

36. It has been submitted that the appellants are the bona fide purchasers of their respective
plots and are in actual physical possession thereof on the basis of the registered saledeed/agreement to sale and in case their interest in the property in question is not protected, they
would suffer irreparable loss and injury. It is also submitted that the appellants have no other
remedy but to approach this Court by filing the instant second appeal.

37. It is not in dispute that the appellants have acquired their right over the land in dispute on
the basis of the alleged sale-deed/agreement to sale executed by the respondent no. 3, Raebareli
Development Authority in their favour during pendency of the proceedings before the learned
Courts below. They are the successor-in-interest of Raebareli Development Authority. The first
appellate Court has set-aside the judgment and order passed by the Trial Court and has allowed the
suit for permanent and mandatory injunction filed by respondents no. 1 and 2 against Raebareli
Development Authority and other respondents. Raebareli Development Authority has been
restrained from interfering in the peaceful possession and title of respondents-plaintiffs and has also
been restrained to dispossess respondents no. 1 and 2 without due process of law. The present
appellants claim that they are in possession over the property in dispute and have also raised certain
constructions over the land in dispute.

38. It is to be noted that the appellants/applicants were not party to the proceedings before the
learned Courts below. Respondent-Raebareli Development Authority has not filed any second
appeal challenging the impugned judgment and decree till date and in case leave to appeal is
refused to the appellants the impugned judgment and decree shall stand confirmed.

39. Respondents no. 1&2, on the basis of impugned judgment and decree, claim their right to
hold possession over the land in dispute. The interest of present appellants would definitely be
adversely affected. The appellants as such are "aggrieved party" as their legal right is prejudicially
or adversely affected by impugned decree.

40. Moreover, it is to be noted that Section 146 CPC provides that where any proceedings
taken by or against any person, then the proceedings may be taken by or against any person
claiming under him. Order XXII Rule 10 CPC envisages the procedure in case of assignment,
creation or devolution of any interest during the pendency of a suit and provides that the said suit
by leave of the Court, be continued by or against any person to or upon whom such interest has
come or devolved. The effect of Section 52 Transfer of Property Act is not to wipe out a sale
pendente lite altogether but to subordinate it to the rights based on the decree in the suit. The decree
will have a binding effect on the vendee, though not a party in the suit. As such, in any case,
appellants have a right to maintain this appeal.

41. Leave to appeal is granted to the appellants.
5 All. Pr. Commissioner Of Income Tax Kanpur Vs M/S Surya Merchants Ltd.

113

42. The applications preferred in this regard are accordingly decided.

43. List this case in the next cause list.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2016

BEFORE

THE HON'BLE DILIP GUPTA, J.
THE HON'BLE RAVINDRA NATH KAKKAR, J.

Income Tax Appeal No.- 248 Of 2015

Pr. Commissioner Of Income Tax Kanpur ...Appellant
Versus
M/S Surya Merchants Ltd.