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IN THE HIGH COURT OF BOMBAY
K. R. Shriram, Rajesh S Patil, JJ.
Arun Sampatrao Patil - Appellant
Versus
Bhikaji Laxman Waghmare - Respondent
Interim Application No. 3590 of 2020 in First Appeal No. 1407, 1519 of 2012, Civil Application No. 139, 140 of 2022
Decided On : 07-02-2023
CIVIL PROCEDURE - PARTITION SUIT - Order XXII Rule 10, Order XXII Rule 11, Section 146 - The court discussed the applicability of Order XXII Rule 10 and Section 146 of the CPC regarding the assignment of rights during the pendency of a suit. It emphasized that an assignment made in violation of an injunction order is treated as a nullity, thus denying the applicant's request to be added as a party to the appeal. The court reinforced the principle that transfers made in defiance of court orders do not confer any rights to the transferee, maintaining the integrity of judicial authority and public policy.
Fact of the Case:
The appellant filed a partition suit for various properties, claiming that a specific land was part of joint ancestral property. The respondents contended it was self-acquired property. During the suit, the applicant claimed to have acquired development rights to the property through an assignment deed, which was executed while an injunction against alienation was in force. The applicant sought to be added as a party to the appeal, arguing that the assignment should allow them to continue the suit.
Finding of the Court:
The court found that the assignment deed was executed in violation of an existing injunction order, rendering it a nullity. The application to add the applicant as a party to the appeal was rejected, as the assignment did not occur during the pendency of the appeal and was not valid under the CPC provisions cited.
Issues: Whether the applicant could be added as a party to the appeal based on an assignment deed executed during the pendency of the suit, despite an existing injunction against alienation of the property.
Ratio Decidendi: The court held that an assignment made in violation of a court's injunction is treated as if it never occurred, thus the applicant could not claim any rights under such an assignment. The court emphasized the importance of adhering to court orders to maintain the rule of law and public policy.
Final Decision: The application to add the applicant as a party to the appeal was dismissed with costs, affirming that the assignment deed was invalid due to the injunction in place at the time of its execution.
JUDGMENT/ORDER
K. R. Shriram, J. - There was a partition suit filed by Appellant before the Joint Civil Judge Senior Division, Pune, being Special Civil Suit No.1478 of 2009 (Original Regular Civil Suit No.565 of 1996). Respondents to the Appeal were Defendants in the suit. The suit was for partition of various properties, as mentioned in the impugned Judgment dated 31st July 2012. One of the property was land survey No.143/2. According to Appellants, the land was part of joint ancestral land whereas, it was the case of Respondent No.1(a) to 1(h), who are the legal heirs of original Defendant No.1 that the said property was self acquired property of Defendant No.1. Respondent Nos.1(a) to 1(h) (hereinafter referred to as Respondent No.1 for convenience) had granted development rights to Respondent No.6.
2. Applicant herein has filed this Application to be made a party to this Appeal on grounds, inter alia, that Respondent No.6, i.e., Mr.Nilesh Kanade Group through its proprietor Nilesh Satish Kanade had assigned the said property in favour of Applicant. The assignment deed dated 13th March 2007 (the deed of assignment), copy whereof is annexed to the application is signed by Respondent No.1, Respondent No.6 and Applicant. The assignment deed has been signed by Respondent No.6, as constituted attorney of Respondent No.1. According to Applicant the assignment happened during the pendency of the suit and it was left to Respondent No.6 to defend the suit and now Respondent No.6 has turned hostile against Applicant and is not pursuing the First Appeal diligently because this Appeal has been pending in this Court for quite some time. According to Applicant, therefore, Applicant should be added as Respondent to the First Appeal. Mr.Kanade relied on Order XXII Rule 10 and 11 of the Code of Civil Procedure (CPC) and also Section 146 of the CPC. For ease of reference, both are reproduced herein:
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10. Procedure in case of assignment before final order in suit - (1) 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.
(2) 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).
[10-A. Duty of pleader to communicate to Court death of a party - Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.]
Order XXII Rule 11
11. Application of Order to appeals - In the application of this Order to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant' a respondent, and the word 'suit' an appeal.'
'Section 146.
Proceedings by or against representatives - 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.'
3. Mr.Kanade submitted that since Respondent No.6 has assigned his rights to Applicant, by virtue of Order XXII Rule 10 read with Rule 11, the Appeal, by leave of the Court, may be continued by or against Applicant because it is upon Applicant that the interest of Respondent No.6 has devolved.
4. Mr.Kanade, in the alternative, submitted that even if Order XXII Rule 10 would not be applicable still by virtue of Section 146 of CPC, the Appeal may be proceeded against Applicant because Applicant is claiming under Respondent No.6.
5. Mr.Kanade submitted that as per the deed of assignment, Applicant has paid Rs.4 crores to Responden
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