# Third Party/ v. Mohd. Ahmad and others

- **Citation:** (2008) 1 ILRA 337
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-12
- **Case number:** F.A.F.O. No. 348 of 2008
- **Bench:** V.M. Sahai, R.N. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/third-party-v-mohd-ahmad-and-others-41122
- **Pages:** 5

## Headnote

Code of Civil Procedure-Order 1 Rule 3,
10 (2) Order 22 rule 10-impleadment of
third party-during pendancy of suit
purchased the disputed property-after 8
338 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
years of sale moved application for
impleadment-held-No
right
or
title
decided-Trail Court rightly rejected-may
approach for separate trail.

Held: Para 11

In view of our above discussions, we
come to the conclusion that the learned
Trial Court has rightly observed that the
third party appellants are not proper and
necessary party to the suit and their
prayer is hit by Section 52 of the
Transfer of the Property Act. Moreover,
the appellants lack in bonafides in
moving the Court after 7 years of the
sale deed in which it was specifically
disclosed that the suit was pending. The
suit is ready for final argument. Rule 3A
of Order 1 CPC lays down the provision
for separate trial where the joinder of
the defendants may delay the trial. As
such, this appeal is devoid of merits and
it is dismissed summarily under Order 41
11 C.P.C. with costs to the contesting
respondents.
Case law discussed:
2005 (6) SCC 733, AIR 2001 SC 2552, 2002
A.C.J. 496, 1996 (27) ALR 203, 2007 (49) All
India Cases,

## Text

1 All] Shahzad Ahmad Khan and others V. Mohd. Ahmad and others
337
Praven
Kumar,
Manager
(Law)
of
respondent no.2 have filed affidavits
tendering unconditional apology. Not
only this, respondent no.3 Sanjiv Kumar,
the purchaser of the house has also filed
affidavit praying for cancellation of sale
deed to avoid further complications. He
has made request only for refund of price
of house, stamp duty and registration
charges etc. From the affidavit of the
Bank authorities, we are satisfied that
though they have committed mistake but
there was no malafide on their parts.
There was technical bonafide mistake in
computing the period of notices and sale
etc.
Therefore,
we
accept
their
unconditional apology and do not pass
any order against them. Any observation
made against them shall not be treated as
adverse.

6. The petitioner is ready to pay the
amount due. The respondent no.3 has no
objection to it. Admittedly, the petitioner
has already deposited first and second
instalment as directed in our order dated
30.10.2007.

7. The writ petition is allowed and
entire recovery proceedings is quashed.
The sale deed of the disputed house dated
5.11.2007
executed
in
favour
of
respondent no.3 is also cancelled. The
respondent no.3 will get back the amount
paid by him as price of house and other
charges as under:

(a) Rs.5,10,000/ price of house.
(b) Rs.72,700/ stamp fee.
(c) Rs.5020/ registration fee.
(d) Rs.1000/ Misc. charges.

8. Thus, total amount comes to
Rs.5,88,720/- (Five lacs eighty eight
thousand seven hundred twenty only).
The bank authorities agree that they will
pay the said amount to respondent no.3
within fifteen days.

9. The petitioner will repay the
remaining amount of loan in two
instalments as follows:
(i) 1st instalment by 15th May 2008.
(ii) IInd instalment by 15th August, 2008.

10. It is made clear that in case of
default in the payment of any instalment,
the Bank shall be at liberty to realize the
entire dues according to law.

11. Let a copy of this order be sent
to
the
sub-Registrar
concerned
for
information and necessary action.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE R.N. MISRA, J.

F.A.F.O. No. 348 of 2008

Shahzad Ahmad Khan and others

...Third Party/Appellants
Versus
Mohd. Ahmad and others

...Plaintiffs/Respondents

Counsel for the Appellants:
Sri Syed Wjaid Ali

Counsel for the Respondents:
Sri Rakesh Kumar
Sri K.L. Grover
Sri Ramesh Singh
Sri A.K. Singh

Code of Civil Procedure-Order 1 Rule 3,
10 (2) Order 22 rule 10-impleadment of
third party-during pendancy of suit
purchased the disputed property-after 8
338 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
years of sale moved application for
impleadment-held-No
right
or
title
decided-Trail Court rightly rejected-may
approach for separate trail.

Held: Para 11

In view of our above discussions, we
come to the conclusion that the learned
Trial Court has rightly observed that the
third party appellants are not proper and
necessary party to the suit and their
prayer is hit by Section 52 of the
Transfer of the Property Act. Moreover,
the appellants lack in bonafides in
moving the Court after 7 years of the
sale deed in which it was specifically
disclosed that the suit was pending. The
suit is ready for final argument. Rule 3A
of Order 1 CPC lays down the provision
for separate trial where the joinder of
the defendants may delay the trial. As
such, this appeal is devoid of merits and
it is dismissed summarily under Order 41
11 C.P.C. with costs to the contesting
respondents.
Case law discussed:
2005 (6) SCC 733, AIR 2001 SC 2552, 2002
A.C.J. 496, 1996 (27) ALR 203, 2007 (49) All
India Cases,

(Delivered by Hon'ble V.M. Sahai, J.)

1. This appeal has been preferred by
the third party-appellants against the order
dated 17.11.2007 passed by Addl. District
Judge, Court No.6, Saharanpur in Original
Suit No. 89 of 1999, by which the
application 236C2 moved by them under
Order 1 Rule3, 10(2), order 22 Rule 10
and Section 151 CPC for impleadment as
defendants has been rejected.

2. We have heard Shri Syed Wajid
Ali, learned counsel for the appellants and
Shri Rakesh Kumar for the respondents
and perused the order passed by the
learned court below.

3. It appears from the record that the
aforesaid suit has been filed by the
plaintiff-respondents no. 1 and 2 against
the defendant-respondent no.3 for specific
performance of contract to sale of the
landed property agreement which was
allegedly entered into between them on
13.2.1991, a registered document. When
the defendant-respondent no.3 did not
execute the sale deed in pursuance to the
contract, the plaintiff-respondents no. 1
and 2 filed the suit. In the meantime some
more developments took place. During
the pendency of the suit on 22nd and 26th
May 2000, the defendant-respondent no.3
allegedly sold the property in suit to the
present third party-appellants and on the
basis of that sale deed (copy annexure-I),
they moved application for impleadrnent,
which was rejected by the learned Trial
Court. The present appeal has been
preferred against that order.

The main and only question involved
in this appeal is whether the third partyappellants are proper and necessary party
to the aforesaid suit under Order 22 Rule
10 CPC. The learned counsel for the
appellants has argued that since the owner
of the property (defendant-respondent
no.3) transferred the disputed property to
them in May 2000, therefore, their interest
is involved in the property and for the
final adjudication of the case it is
necessary that they may be allowed to be
impleaded as party and put their case
before the Court. As against this the
learned
counsel
for
the
plaintiffrespondents no. 1 and 2 have alleged that
the appellants are neither proper nor
necessary party to the suit because their
case is hit by Section 52 of the Transfer of
Property Act.
1 All] Shahzad Ahmad Khan and others V. Mohd. Ahmad and others
339
4. This is admitted case that the suit
was filed in the year 1993 and on the
basis of registered agreement dated
13.2.1991 to sell the property in dispute,
the relief for specific performance of
contract has been sought for in the suit.
The defendant-respondent no.3 had been
contesting the suit. In the meantime, in
May 2000 the property was allegedly
transferred by the respondent no.3 to the
present appellants, meaning thereby, the
transfer in favour of the appellants was
made during the pendency of the suit. As
regards the application of the provisions
of Order 1 Rule 3 are concerned they are
not applicable in the present case. The
provisions of Order 22 Rule 10 CPC have
attracted our attention which runs as
under:

"Procedure in case of assignment
before final order in suit- (i) In other
cases 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.
(ii) The attachment of a decree pending
an appeal therefrom shall be deemed to
be an interest entitling the person who
procured such attachment to the
benefit of sub-rule (1)."

5. The appellants moved application
for impleadment on the basis of the
aforesaid provision but the learned Trial
Court rejected their prayer being hit by
Section 52 of the Transfer of the Property
Act, which runs as under:

"Section-52 Transfer of property
pending suit relating there to During
the pendency in any Court having
authority (within the limits of India
excluding the State of Jammu and
Kashmir) or established beyond such
limits) by (the Central Government) of
(any) suit or proceedings 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
proceedings so as to the 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."

6. The aforesaid provision is very
clear, in view of which no valid transfer
can be made during the pendency of the
suit without authority of the Court.
Admittedly, in the present case no such
permission was sought by the defendantrespondent no.3 to transfer the property in
suit or by the appellants to purchase it.
The copy of the sale deed, annexure-l to
the memo of appeal shows that the parties
involved
in
the
transfer
had
full
knowledge of the fact that a suit for
specific performance of contract between
the plaintiff-respondents and defendantrespondent was pending. There was
specific mention of this fact in the sale
deed itself, therefore, the appellants
cannot say that they had no knowledge of
the suit pending between the respondent
nos. 1 and 2 on one side and respondent
no.3 on the other side. Even having
knowledge of the pendency of the suit, no
permission for transfer was sought under
Section 52 of the Transfer of the Property
Act.

7. The learned Counsel for the
appellants has cited the case of Kasturi
Vs. Iyyameperumal and Others 2005 (6)
340 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
SCC 733 and has argued that the
appellants were proper and necessary
party to the suit but we see no force in this
contention. In the aforesaid case the Apex
Court held that in a suit for specific
performance of a. contract for sale, third
party stranger; to the agreement could not
claim independent title and possession
over the disputed property. Another case
cited by the learned Counsel for the
appellants is Dhurandhar Prasad Singh
Vs. Jai Prakash University and Others
AIR 2001 SC 2552, in which it has been
held that as a rule of a prudence, initial
duty lies upon the plaintiff to apply for
leave in case the factum of devolution
was within his knowledge or with due
diligence could have been known by him.
The learned counsel for the appellants has
also cited the case of Jaskirat Datwani
Vs. Vidyavati and Others 2002 A.C.J.
496, in which the Hon'ble Apex Court has
held that a transferee during the pendency
of the suit would be bound by the decree
as he has knowledge of the suit. In the
present case before us it is clear from the
copy of the sale deed itself that the
appellants had full knowledge of the
pendency
of
the
suit
for
specific
performance of contract against their
vendor and even then they purchased the
property without obtaining permission of
the Court as required under Section 52 of
the Transfer of the Property Act and not
only this they slept over the matter for
about 7 years without any cause. They
applied for impleadment under Order 22
Rule 10 CPC after about 7 years when the
hearing of the case was almost concluded
and the case was fixed for final argument.

8. The learned counsel for the
respondents no. 1 and 2 has cited 1996
(27) ALR 203 Anit Kumar Singh Vs.
Shivnath Mishra, in which it has been
held that in a suit for specific performance
of contract the third party has no right to
be impleaded as defendant on the basis of
assignment, creation or devolution of
interest under Order 22 Rule 10 CPC.

9. The latest judgement on this point
is 2007 (49) All India Cases Sanjay
Verma Vs. Manik Roy and Others in
which the Apex Court has taken the same
view. In the said case the appellant filed
the suit for specific performance of
contract against one Rajeshwari Devi, the
respondent no.3. During the pendency of
the suit Smt. Vinaya Devi, the defendant
respondent no.4 transferred a portion of a
suit land in favour of one Mihir Kumar
Chakraborty. Another defendant Sanjay
Prasad also transferred a portion of suit
land in favour of Shyam Kumar Dutta.
Both of them applied for impleadment
under Order 1 Rule 10 CPC. Their
application was rejected by the Trial
Court but in the writ petition before the
High Court, the order of the learned Trial
Court was set aside. The SLP was filed
against that order. The Apex Court
allowed the SLP and set aside the order
passed by the High Court. A reference of
the case of the Dhurandhar Prasad
Singh (Supra) was also given in' the said
case. It was clearly held that the transfer
without the permission of the Court was
hit by Section 52 of the Transfer of the
Property Act. It was also observed that the
principle of "lis pendens" embodied in
Section 52 of the Transfer of the Property
Act being a principle of public policy, no
question of good faith or bonafide arises.
The principle underlying Section 52 is
that a litigating party is exempted from
taking notice of a title acquired during the
pendency of the litigation. The mere
pendency of a suit does not prevent one of
the parties from dealing with property
1 All] Radhey Shyam V. State of U.P. and others
341
constituting that the 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 was alienated
with the permission of the Court. On the
basis of principle of "precedence" this
judgement, being latest one, will prevail
over the earlier judgements cited by the
learned counsel for the appellants.

10. The learned Trial court has
pointed out a very material thing in its
impugned
order.
The
defendantrespondent no.3 has already filed a suit
against the present appellants for the
cancellation of the sale deed on various
grounds which is numbered as Original
Suit No. 389 of 2003. Therefore, in the
present suit if the appellants are made
party on the basis of the sale deed in their
favour, there will arise a dispute regarding
the genuineness of the sale deed itself
between the defendants inter-se, which
cannot be decided in the said suit. Thus, it
is clear that interest of the third party is
contrary to their alleged vendor.

11.

In
view
of
our
above
discussions, we come to the conclusion
that the learned Trial Court has rightly
observed that the third party appellants
are not proper and necessary party to the
suit and their prayer is hit by Section 52
of the Transfer of the Property Act.
Moreover,
the
appellants
lack
in
bonafides in moving the Court after 7
years of the sale deed in which it was
specifically disclosed that the suit was
pending. The suit is ready for final
argument. Rule 3A of Order 1 CPC lays
down the provision for separate trial
where the joinder of the defendants may
delay the trial. As such, this appeal is
devoid of merits and it is dismissed
summarily under Order 41 11 C.P.C. with
costs to the contesting respondents.
Appeal dismissed.

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2008

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE VINEET SARAN, J.

Special Appeal No. 203 of 2008

Radhey Shyam

...Appellant
Versus
State of U.P. and others ...Respondents

Counsel for the Appellant:
Sri S.A.N. Shah

Counsel for the Respondents:
Sri Arvind Kumar Singh
S.C.

U.P. Punchayat Raj Act, 1947-Section 5A,
95
(1)
(g)-Removal
of
village
Pradhan-on ground of being convicted
for an offence of Dacoity-challenge made
on ground that-against conviction appeal
admitted
and
during
pendency
of
Appeal-operation of conviction order
suspended-held
not
amounts
to
temporary stay but the execution of
sentence suspended and not obliterated.

Held: Para 5

We
are
not
impressed
with
the
submission made before us for the
reason that the suspension of sentence
·does not amount to washing out the
conviction. It is admitted that the appeal
has
only
been
admitted
and
the
appellant has been released on bail and
the sentence has been suspended till the
disposal of the appeal, which does not
amount to setting aside the conviction.
Case law discussed:
(2007) 3 SCC (Crl.) 149
(2005) 1 SCC 754