IMPORTANT POINT
A lis pendens transferee, though not brought on record under Order 22 Rule 10 CPC is entitled to move an application under Order 9 Rule 13 CPC to set aside a decree against his transferor.

Headnote:(i) Civil Procedure Code, 1908-Order 9 Rule 13-Lis pendens transferee-Locus standi to move application for setting aside ex-parte decree-Lis pendens transferee, though not brought on record under Order 22 Rule 10 ref=act:10444>CPC is entitled to move an application u/O. 9 Rule 13 CPC to set aside a decree passed against his transferor-As to availability of sufficient cause and for condoning delay u/s 5 of Limitation Act, it would be purely a question of fact.
       Held : The appellant cannot dispute that the decree though passed against the respondent Nos. 2 and 3 could be executed even against the respondent No. 4, he being a lis pendens transferee though not having been joined in the suit as a party. Such a person can prefer an appeal being a person aggrieved. Clearly, the person who is liable to be proceeded against in execution of the decree or can file an appeal against in decree, though not a party to the suit or decree, does have locus standi to move an application for setting aside an ex-parte decree passed against the person in whose shoes he has stepped in. In the expression employed in Rule 13 of Order 9 of the CPC that in any case in which a decree is passed ex-parte against a defendant, he may apply for an order to set it aside the word he cannot be construed with such rigidity and so restrictively as to exclude the person, who has stepped into the shoes of the defendant, from moving an application for setting aside the ex-parte decree especially in the presence of Section 146 of the CPC. (Para 13)
       We hold that a lis pendens transferee, though not brought on record under Order 22 Rule 10 of the CPC, is entitled to move an application under Order 9 Rule 13 to set aside a decree passed against his transferor-the defendant in the suit. (Para 15)
       (ii) Transfer of Property Act, 1882 -Section 52-Doctrine lis pendens-Transferee pendente lite is treated in eye of law as representative-in-interest of judgment debtor-Bringing of a lis pendens transfer on record is not as of right but in discretion of Court.
       Held : The doctrine of lis pendens expressed in the maxim ut lite pendente nihil innovetur (during a litigation nothing new should be introduced) has been statutorily incorporated in Section 52 of the Transfer of Property Act 1882. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successful plaintiff of the fruits of the decree. The transferee pendente lite is treated in the eye of law as a representative-in-interest of the judgment-debtor and held bound by the 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 of the CPC. In case of an assignment creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 of the CPC confers a discretion on the Court hearing the suit to grant leave for the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the Court. Though not brought on record the lis pendens transferee remains bound by the decree. (Para 5)

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

A lis pendens transferee, even if not formally brought on record under Order 22 Rule 10 of the Civil Procedure Code (CPC), has the legal standing to apply under Order 9 Rule 13 of the CPC to set aside an ex-parte decree passed against his transferor. This is because such a transferee is considered a representative-in-interest of the judgment debtor (!) (!) .
The doctrine of lis pendens, which is incorporated into the Transfer of Property Act, states that during litigation, no new interests in the property should be introduced that could affect the outcome. A transferee pendente lite is bound by the decree, regardless of whether they have been formally brought on record, as they are deemed to claim under the judgment debtor (!) (!) .
The discretion to bring a lis pendens transferee on record lies with the court and is not an automatic right. Nonetheless, even if not formally recorded, such transferees remain bound by the decree and can seek to set aside ex-parte decrees against their transferor (!) (!) .
The application to set aside an ex-parte decree by a transferee pendente lite is permissible because the transferee is considered a person claiming under the defendant, and proceedings can be taken against such persons under Section 146 of the CPC, which recognizes claims under persons claiming under the original party (!) (!) .
The legal framework ensures that a decree passed against a defendant is executable against a transferee pendente lite, whether or not the transfer occurred before or after the decree, and irrespective of whether the transferee was brought on record at the appropriate time (!) (!) .
The court emphasizes that the rights of a transferee pendente lite are recognized as those of a person claiming under the original judgment debtor, and such persons can participate in proceedings and seek relief, including setting aside decrees, even if they were not initially parties or not formally recorded (!) (!) .
The decision underscores the importance of the procedural provisions and the discretion vested in courts to permit the addition of transferees during ongoing litigation, ensuring that the decree's enforcement and the rights of parties are properly balanced (!) .
Overall, the legal principles affirm that a transferee pendente lite, despite not being formally recorded under Order 22 Rule 10, retains the right to challenge decrees and participate in execution proceedings, safeguarding the interests of those claiming under the original judgment debtor (!) (!) (!) .

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JUDGMENT

R.C. Lahoti, J.-Leave granted.

2. During the pendency of a civil suit relating to an immovable property, respondent No. 4 herein purchased the suit property from the defendants (respondent Nos. 2 & 3) by a registered deed of sale dated 24.9.1995. The respondent No. 4, it appears, was not aware of the pendency of the suit; rather the vendors stated in the deed of sale that the property was not a subject matter of any litigation. On 27.11.1995, the suit was decreed ex-parte against the defendants (respondent Nos. 2 & 3). On 30.5.1998, the respondent No. 4 filed an application under Order 9 Rule 13 of the CPC seeking setting aside of the decree and also making a prayer under Order 22 Rule 10 of the CPC for being brought on record. Prayer was also made for condoning the delay in filing the application inasmuch as the ex-parte decree was not in the knowledge of the respondent No. 4. The trial Court has allowed the application condoning the delay in filing the same and held that a sufficient cause for setting aside the decree within the meaning of Order 9 Rule 13 of the CPC was made out. The appellant preferred a civil revision in the High Court which has been dismissed.

3. The only plea raised and vehemently urged by Shri S.N. Mishra, the learned senior counsel for the appellant before this Court, as was done before the trial Court and the High Court too, is that an application under Order 9 Rule 13 of the CPC can be filed only by a defendant and by no one else. The respondent No. 4 is a transferee pendente lite and in the absence of his having promptly taken steps under Order 22 Rule 10 of the CPC for being brought on record, he remains bound by the result of the suit. He must suffer the consequences of an adverse decree passed against his vendors who have not chosen to lay any challenge to the ex-parte decree, submitted the learned counsel.

4. We have heard Shri S.N. Mishra, the learned senior counsel for the appellant and Shri Manoj Swarup, learned counsel for the respondent No. 4. We are satisfied that there is no merit in the appeal and the same is liable to be dismissed.

5. The doctrine of lis pendens expressed in the maxim ut lite pendente nihil innovetur (during a litigation nothing new should be introduced) has been statutorily incorporated in Section 52 of the Transfer of Property Act 1882. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successful plaintiff of the fruits of the decree. The transferee pendente lite is treated in the eye of law as a representative-in-interest of the judgment-debtor and held bound by the 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 of the CPC. In case of an assignment creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 of the CPC confers a discretion on the Court hearing the suit to grant leave for the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the Court. Though not brought on record the lis pendens transferee remains bound by the decree.

6. The present case has a peculiar feature. The transfer took place during the pendency of the suit but the decree passed ex-parte in the suit is 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 appears to be a third party. However, as we have already stated hereinabove, the person would be a representative-in-interest of the defendant judgment-debtor.

7. The solution lies in Section 146 of the Code of Civil Procedure, 1908. It provides -

"146. Proceedings by or against representatives.-Save as otherwise

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2004 Supreme(SC) 70

IMPORTANT POINTA lis pendens transferee, though not brought on record under Order 22 Rule 10 CPC is entitled to move an application under Order 9 Rule 13 CPC to set aside a decree against his transferor.

Cases Referred (4)

IMPORTANT POINT
A lis pendens transferee, though not brought on record under Order 22 Rule 10 CPC is entitled to move an application under Order 9 Rule 13 CPC to set aside a decree against his transferor.