Impleadment of a party during the pendency of an appeal and the application of the doctrine of lis pendens.

Aparesh Kumar Singh, J.

I.A. No.6078 of 2017 is an application for intervention on behalf of the applicant Kalyani Developers under Order 1, Rule 10 read with Order 22, Rule 10 of the Civil Procedure Code. The applicant is the purchaser of the suit property through a deed of absolute sale made on 4th July, 2014 Annexure-IA/1 executed by the defendant vendor Smt. Shanti Sharan, of course during pendency of the instant appeal. The appeal is directed against the judgment passed by the learned Court of Sub-Judge-VII, Ranchi in Title Suit No. 283/2002 dated 25th September, 2008 whereby the suit for mandatory decree against the defendant for enforcing the agreement dated 17th April, 2000; directing him to receive the balance consideration, execute and register deed of conveyance in respect of the suit property in favour of the plaintiff and put him in possession thereof, instituted by the plaintiff/appellant herein, has been dismissed on contest.

2. Learned counsel for the applicant submits that the applicants were completely ignorant of the pendency of the instant appeal. The transfer made during pendency of appeal would though be hit by the doctrine of lis pendens under section 52 of the Transfer of Property Act but the transfer itself is not rendered void and would only be subject to the final outcome of the lis between the parties. Therefore, presence of applicant as a defendant is necessary. Reliance has been placed on the judgment rendered by the Hon'ble Supreme Court in the case of Dhurandhar Prasad Singh v. Jai Prakash University and others reported in (2001) 6 SCC 534. Paragraph 7 thereof is extracted hereunder as well :-

"7. Under Rule 10, Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against persons upon whom such interest has devolved and this entitles the persons who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the Court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by Their Lordships of the Judicial Committee in Moti Lal v. Karrabuldin he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, an Lord Kingsdown of the Judicial Committee said in Prannath Roy Chowdry v. Rookea Begum, a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings."

3. Reliance has also been placed on the case of (2005) 11 SCC 403, paragraphs 13 to 17. Paragraph 16 thereof is also extracted hereunder :-

"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, where 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