Judgment

Mrs. Archana Puri, J.

Challenge in the present revision petition is to the order dated 11.10.2022 passed by learned Civil Judge (Jr. Divn.), whereby, an application filed by the petitioners under Order 22 Rule 10 read with Section 151 CPC, has been dismissed.

2. The material facts, as culled out from the paper-book are that, initially, respondents No.1 and 2 (who are plaintiffs before the lower Court) had filed a suit for seeking relief of separate possession of half share through partition by metes and bounds, in respect of shop consisting of two ‘khans’ bearing No.21, Ward No.XV, as detailed in paragraph 1 of judgment, copy whereof is Annexure P-1.

3. As evident from the judgment dated 22.05.2018 (Annexure P- 1), the said suit was dismissed. Respondents No.1 and 2 (plaintiff) had filed an appeal. Vide order dated 16.12.2021, the judgment and decree dated 22.05.2018 was set aside and the case was remanded back to the lower court, with the direction to take additional evidence of the plaintiff, as permitted by the Court and also to afford an opportunity, to the defendant, to rebut the additional evidence and learned lower Court was further directed to record/return its finding on the aspect of partial partition of the suit property and to decide the suit afresh on merits. Copy of the said order is Annexure P-2.

4. However, on 08.04.2022, the petitioners, namely Mamta and Kiran, had filed an application under Order 22 Rule 10 read with Section 151 CPC, thereby, asserting about respondent No.3-Radha Krishan (defendant before the Court below) to have sold his share, in the suit property, in their favour, vide Vasika No.9926 dated 14.01.2020. It was also pleaded therein, that they purchased the suit property from the defendant-Radha Krishan, to the extent of his share. The interest has devolved upon the petitioners and in view of the above, the petitioners want to continue the said suit, in place of defendant-Radha Krishan. Copy of the said application is Annexure P-3.

5. However, in pursuance of the notice issued, respondents plaintiffs had filed their reply, inter alia, stating that the application is false and frivolous and that the alleged sale deed had come into existence, without the permission of the Court and is hit by Section 52 of the Transfer of the Property Act, 1882. The petitioners are neither necessary nor proper parties. However, the Court below, after hearing the parties concerned, vide impugned order dated 11.10.2022, dismissed the application for substitution of the petitioners, in place of defendant-Radha Krishan, in the suit, while holding in the facts and circumstances, doctrine of lis-pendence will apply and petitioners would be bound by the order in the suit.

6. Learned counsel for the parties heard.

7. In order to adjudicate the controversy involved in the present petition, the provisions of Order 22 Rule 10 CPC, is reproduced, as herein given:-

“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, 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).”

8. In view of this provision, the finding so recorded by learned lower Court is erroneous.

9. Clause 1 of Rule 10 of Order 22 CPC, provides for continuation of the suit by or against the person to or upon whom such interest has come or devolved, where there is assignment, cr