An amendment to declare a sale deed null and void is unnecessary when the sale falls under the principle of lis pendens, maintaining litigation status during pending appeals.

ORDER :

1. This matter is taken up through Hybrid mode.

2. Petitioner in this CMP seeks to assail the order dated 12^th September, 2009 (Annexure-7) passed in RFA No. 2 of 2019, whereby learned District Judge, Ganjam at Berhampur rejected an application filed by the Petitioner-Appellant under Order VI Rule 17 CPC to incorporate the prayer ‘to declare the Regd. Sale deed being document No. 11841900780 of 2019 be decreed as null and void’.

3. The petition under Order VI Rule 17 CPC was taken up along with a petition under Order I Rule 10 CPC to implead the lis pendens purchasers as parties to the appeal in whose favour the aforesaid sale deed was executed by the Respondent No. 20. Both the petitions were disposed by a composite order dated 12^th September, 2019 rejecting both the applications. The order in respect of rejection of petition under Order I Rule 10 CPC was assailed before this Court in CMP No.1127 of 2019, which was disposed of on 19^th May, 2022 with the following direction:-

“5. In the circumstance, this Court finds, there is no proper application of mind in considering the application by the lower appellate court. In the process and as there is necessity of inclusion of such party at least for the purpose of injunction, this Court allowing the application for bringing the new party as Respondent nos. 21 & 22, also directs the Appellants to file amended cause title in the memorandum of appeal at least within a period of seven working days. Upon bringing the amended cause title, the lower appellate court shall issue notice to such parties in appeal so also involving him in interlocutory matters. Since this CMP does not involve rejection of the amendment, in the event there is just requirement of new pleadings, it shall be open to the Petitioner to file a fresh C.M.P.”

Accordingly, the lis pendens purchasers were impleaded as parties to the appeal. In view of the observation made by this Court as aforesaid, this petition has been filed assailing rejection of application under Order VI Rule 17 CPC.

4. Mr. Mishra, learned Senior Advocate for the Petitioner submits that the judgment in the suit (C.S. No. 92 of 2017) was passed on 15^th November, 2018. Assailing the same, the appeal (R.F.A. No. 2 of 2019) was filed on 2^nd January, 2019. Before the appeal was taken up for admission, the Respondent No.20 sold some portion of the suit land to Respondent-Opposite Party Nos. 21 and 22 (newly impleaded) vide RSD dated 20^th March, 2019. It is submitted that before its admission, there was no appeal in the eye of law. The appeal was admitted only on 23^rd April, 2019. As such, the sale in question cannot be said to be lis pendens in nature. Thus, Section 52 of the Transfer of Property Act, 1882 (for convenience referred to as ‘the Act’) has no application to the case at hand. As such, the amendment sought for is imperative for just adjudication of the suit. However, learned appellate Court rejected the petition for amendment holding that as the Court already held that presence of the lis pendens purchasers is not required to adjudicate the issue involved in the suit, the amendment to declare the sale deed executed in favour of the lis pendens purchasers as null and void, is not necessary. It is submitted that since the prayer for impletion of lis pendens purchasers has already been allowed, there is no difficulty in allowing the application for amendment by the appellate Court. He, therefore, prays for setting aside the impugned order and to issue a direction to the appellate Court to permit the Petitioner to amend the plaint accordingly.

4. In course of hearing, an issue cropped up for consideration as to whether the sale in question can be treated to be lis pendens under Section