1980 Supreme(MP) 32

M. D. Bhatt, J.
Ashok Kumar v. Sunnu Khan.
C. Revn. No. 251 of 1980 (G); Decided on 6-2-1980.

Headnote:(1) Civil P. C., 1908 -- O. 39, R. 1, 2 and 2 (3) -- sale of suit property during existence of temporary injunction -- whether such sale is a nullity.

        (2) Civil P. C., 1908 -- O. 22, R. 10 -- purchaser of suit property right of -- whether such person may be impleaded as party -- doctrine of lis pendents -- applicability of -- Transfer of Property Art, 1882 -- S. 52.

        (3) Transfer of Property Act, 1882 -- S. 52 -- doctrine of lis pendents under -- applicability and extent of -- purchaser whether may be impleaded as party -- Civil P. C., 1908 -- O. 22 R. 10.

        In a suit for declaration and permanent injunction, partition and possession filed by Sunnu Khan (present non-applicant No. 1) against certain members of his family viz. Basal Khan and others (present non-applicants-defendants No. 2 to 5), temporary injunction had been granted against the defendants, restraining them from interfering in the subject matter viz. the properties in suit. The present applicant Ashok Kumar had purchased some of the lands in suit from the defendants Kasimkhan and Subrati Khan (non-applicants No. 4 and 5) during the pendency of the suit. Ashok Kumar having, thus, purchased part of the suit lands, filed the application under Order 12 rule 10 CPC for being joined as a defendant in the suit. The petition was opposed by the plaintiff that Ashok Kumar could not be joined in the suit inasmuch as, the purchase of the property by him during the pendency or suit was hit by section 52 of the Transfer of Property Act. The trial Court, upholding the objection of the non-applicant No. 1 Sunnu Khan and being further of the opinion that Ashok Kumars such purchase was in violation of the temporary injunction which had been granted against the defendants, rejected Ashokumars application under O. 22, R. 10 CPC and hence now, the present revision.

        Held : Coming to the point pertaining to the doctrine of lis pendents as engrafted in section 52 of the Transfer of Property Act. the trial Court is found to have disallowed the applicant Ashok Kumars application under Order 22, R. 10 CPC under this doctrine. The effect of transfer pending litigation on the rights of the parties has been succinctly stated thus in AIR 1956 SC 593 Nagubai Ammal and others v. B. Sharma Rao :

        "The effect of S. 52 is not to wipe out a sale pendente lite altogether but to subordinate it to the rights based on the decree in the suit. As between the parties to the transaction, however, it is perfectly valid and operative to vest the title of the transferer in the transferee."

        The words so as to affect the rights of any other party thereto under any decree or order which may be made therein make it clear that the transfer is good except to the extent under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto. Hence the contention that a transferer pendent lite must for purposes of section 52 be treated as still retaining title to the properties cannot be accepted."

        Section 52 of the Transfer of Property Act therefore, is not attracted in the instant case so as to disentitle the applicant Ashok Kumar from being joined as a party in the suit to protect his right, title and interest of the purchased property. The necessity for his being joined as a party is more so for the reason that the possibility cannot be ruled out for either collusiveness or amicable settlement in the partition suit in question between the plaintiff on the one hand and his close relatives on the other, to the detriment of the interests of the purchaser Ashok Kumar.

        Existence of temporary injunction against the present non-applicants-defendants cannot also come in the way of Ashok Kumars being joined as a party in the suit. The effect of non-compliance with an injunction issued under O. 39 rules 1 and 2 CPC is only to make the offender liable for punishment prescribed in O. 39 rule 2 (3) CPC. There is a complete sale in favour of Ashok Kumar but such sale though in contravention of an injunction Order is not nullity as being without jurisdiction. In the like case it has been held in AIR 1967 Orissa 95 Kusuma Dei and others v. Malati Bewa & others that a party who applies for permission to be impleaded as defendant on the ground that he has purchased the property, permission has to be granted under O. 22, rule 10 (1) CPC. In view of the matter, trial Courts Order disallowing Ashok Kumars application for being impleaded as a defendant does not deserve to be sustained. AIR 1956 SC 593 and AIR 1969 Orissa 195 relied on. Revision allowed.