Transferees have the right to contest ex parte decrees and can be included in legal proceedings as representatives of original defendants under Section 146 of the CPC.

ORDER :

The challenge in this Civil Revision Petition filed under Section 115 of the Code of Civil Procedure is to the common order dated 05.01.2012 passed by the Munisff’s Court, Thodupuzha in four interlocutory applications (I.As.) in O.S.No.118 of 2017.

2. The revision petitioner is the plaintiff in the suit. Respondent Nos. 1 and 2, who are strangers to the suit, filed the interlocutory applications in the trial Court. Respondent Nos. 3 and 4 are defendant Nos. 1 and 2 in the suit.

3. The plaintiff filed the Original Suit for a decree declaring his title over the plaint property and also for a permanent prohibitory injunction against defendant Nos.1 and 2. The suit was decreed in favour of the plaintiff. After passing the decree, the defendants alienated the plaint schedule property to respondent Nos. 1 and 2. The plaintiff filed execution petition inter alia seeking delivery of a portion of the plaint schedule property. Respondent Nos. 1 and 2 (the petitioners in the IAs) filed I.A.No. 798/2011, a petition under Order IX Rule 13 CPC seeking to set aside the ex parte decree, I.A.No.805/2011, a petition under Section 5 of the Limitation Act, I.A.No.806/2011, a petition seeking to implead them as additional defendant Nos. 3 and 4 in the suit and IA No.1058/2011 seeking stay of all further proceedings in E.P.No.8/2010, the execution petition filed by the plaintiff to execute the ex parte decree in O.S.No.118 of 2007.

4. Respondent Nos. 1 and 2 pleaded in the interlocutory applications that they purchased the property on 16.03.2009 from respondent Nos. 5 and 6 who had purchased the property from defendant Nos. 1 and 2 in the year 2007.

5. In the trial Court, the defendants remained ex parte. The Court decreed the suit on 13.08.2008. Respondent Nos. 1 and 2 were working in the United Arab Emirates. They were not aware of the ex parte decree. They got information regarding the decree only on 24.05.2011, the day on which the Amin appointed by the Court visited the property.

6. According to respondent Nos.1 and 2, they are the only affected persons by way of the decree.

7. The petitioner (the plaintiff) resisted the applications, contending that respondent Nos. 1 and 2 are residents near to the plaint property. They had information regarding the decree. The defendants transferred the property to respondent Nos. 1 and 2 without mentioning the existence of the suit or any encumbrance over the property. Respondent Nos. 1 and 2 are the present owners of the property.

8. The trial Court considered the rival contentions and allowed the applications.

9. I have heard the learned Senior Counsel Sri. K.K. Chandran Pillai appearing for the petitioner and Sri. John Vipin, the learned counsel appearing for respondent Nos. 1 and 2.

10. The learned Senior Counsel submitted that respondent Nos. 1 and 2 are not pendente lite transferees as they purchased the property long after the decree. The learned Senior Counsel would further submit that the attempt of respondent Nos. 1 and 2 is to defeat the right over the property crystallized in favour of the petitioner. The learned Senior Counsel also contended that the applications are highly belated.

11. The learned Senior Counsel submitted that the ratio in Raj Kumar v. Sardari Lal [(2004) 2 SCC 601], the decision relied on by the trial Court, does not apply to the facts of the case as the petition considered in Rajkumar was filed during the pendency of the suit.

12. The learned counsel for respondent Nos. 1 and 2 submitted that the decree passed against the defendants in the suit is available for execution against the subsequent transferees and assignees, and it does not make any difference whether such transfer or assignment has taken place after the passing of the decree or before the passing of the decree.

13. The competence of respondents Nos. 1 and 2 to institute a petition under Order IX Rule 13 CPC and the maintainability of the application seeking impleadment as additional defendants at a highly belated sta