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CASE NO.:

Appeal (civil) 6708 of 2001

PETITIONER:

SARASWATI DEVI GUPTA

RESPONDENT:

SUDHA RANI & ORS.

DATE OF JUDGMENT: 14/12/2005

BENCH:

B.P.SINGH & ALTAMAS KABIR

JUDGMENT:

J U D G M E N T

B.P.SINGH, J.

This Appeal by Special Leave is directed against the Order of the High

Court of Judicature at Allahabad in Review Petition No.64773 of 1996 dated 22.7.1999

whereby the High Court summarily dismissed the Review Petition preferred by the

appellant herein. By its Order dated August 30, 1996 the High Court had directed the

Executing Court to entertain and decide the question as to whether a valid assignment of

the decree had been made in favour of the appellant/assignee.

The facts of the case may be briefly recapitulated:-

Suit No.23 of 1972 was filed by one Raghu Nath Prasad for specific

performance of an agreement to sell

the house in question. Shamsher Bahadur was the defendant in the said suit. The suit

was dismissed by the Trial court, but on appeal, by its judgment dated 7th April, 1975

the Appellate Court allowed the appeal and ordered specific performance of the

agreement. The plaintiff Raghu Nath Prasad, the decree holder died on 1st September,

1979. Thereafter, by Order dated 20th November, 1980 the legal representatives of the

said Raghu Nath Prasad were brought on record as also the assignee, the appellant

herein, since she claimed that the late Raghu Nath Prasad had assigned his interest in the

decree in her favour. A Second Appeal was preferred by the defendant against the

judgment of the Appellate Court decreeing the suit for specific performance and the said

Second Appeal was allowed by judgment and order dated 5.7.1982. Thus the decree of

specific performance was set aside and the order of the Trial Court dismissing the suit

was restored. After the judgment and order of the High Court, the legal representatives

of Raghu Nath Prasad who had been brought on record, did not take any further interest

in the matter and did not even challenge the judgment and order of the High Court

dismissing the suit filed by the plaintiff Raghu Nath Prasad. Only the assignee namely,

the appellant, came up by way of appeal to this Court. By judgment and order

dated 10th February, 1989 this Court allowed the appeal. This Court held that the High

Court was in error in dismissing the suit for specific performance. The appeal was

allowed.

At that stage a contention was advanced before this Court that the appellant,

who was the transferee from the decree holder, had no locus standi to prefer the appeal.

This Court noticed that when the appellant (assignee) had made an application before

the High Court for being joined as a respondent, the High Court had passed an order to

the effect that the applicant be brought on record as a respondent in the appeal, but it

would be open to the appellant (before the High Court) to raise such objections as they

would like about the locus standi of the applicant qua the controversy which had to be

decided in the appeal, at the time of final hearing. This Court noticed that despite the

liberty given to raise objections as to the locus standi of the assignee, no such objection

was raised. This Court observed :-

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"The judgment of the High Court clearly indicate that the respondent did

not raise any question in respect of that and in view of this matter the contention

raised here for the first time cannot be considered. The appeal is, therefore,

allowed.

The judgment and decree passed by the High Court is set aside and that of the

Lower Appellate Court is restored. The appellant will be entitled to the cost of

this appeal which we quantify Rs.2000/-."

In the absence of any objection raised before the High Court, this Court did not

entertain the plea of the respondent raised for the f