Order
1. Appellants 1 to 3 the brothers, Appellants 4 and 5 the trustees and Respondent 3 the brother of Appellants 1 to 3 are the joint owners of the property bearing Plot No. 3, Alipur Park Place, in the heart of Calcutta measuring one bigha, six catthas, fourteen chitacks and thirty-seven sq ft equivalent to 2154.11 sq yards having a constructed area approximately 12,000 sq ft consisting of 24 living rooms besides bathrooms, kitchen, two garages and servants quarters, hereinafter referred to as “the suit property”. The property was given on lease vide registered deed of lease dated 1-2-1956 to Durgadas Moondhrs, Respondent 2 at a monthly rent of Rs 700 w.e.f 1-3-1955 for a period of 21 years.
2. Since Respondent 2 failed to hand over vacant possession of the property after the expiry of the period of lease to the appellants and Respondent 3, suit being Title Suit No. 60 of 1980 (subsequently numbered as TS No. 45 of 1987) was instituted seeking recovery of possession from Respondent 2 in the Court of 1st Subordinate Judge, Alipore, Calcutta.
3. Respondent 2 also instituted Title Suit No. 97 of 1980 (subsequently numbered as TS No. 46 of 1987) in the Court of 2nd Assistant District Judge, Alipore, Calcutta against the appellants and Respondent 3 seeking specific performance of the purported agreement dated 9-10-1964 for renewal of the lease deed dated 1-2-1956.
4. Assistant District Judge, Alipore vide his common judgment dated 14-12-1987 decreed Title Suit No. 45 of 1987 along with mesne profits with interest for the period from June 1977 to June 1980 and further mesne profits subject to disposal of proceedings under Order 20 Rule 12 of the Code of Civil Procedure and dismissed Title Suit No. 46 of 1987 instituted by Respondent 2 seeking decree for specific performance.
5. Respondent 2 preferred an appeal before the Calcutta High Court being FAT No. 529 of 1988 (renumbered as FA No. 164 of 1989) against the decree of ejectment passed in Title Suit No. 45 of 1987. He also preferred an appeal in the High Court being FAT No. 530 of 1988 against the judgment in Title Suit No. 46 of 1987 dismissing the suit seeking decree for specific performance. The Division Bench stayed the execution of the decree of eviction with the direction that the proceedings under Order 20 Rule 12 of the Code of Civil Procedure shall continue.
6. The appellants and Respondent 3 filed petition under Order 20 Rule 12 of the Civil Procedure Code for an enquiry and determination of mesne profits w.e.f July 1980 in the Court of IInd Assistant District Judge, Alipore, Calcutta. Memorandum of cross-objections vide COT No 2780 of 1988 was filed by the appellants and Respondent 3 in FA No. 164 of 1989 for mesne profits from 1-7-1980. Appellant 2 Hira Lal Sarawgee sold his undivided share to Purbanchal Estates Pvt. Limited, Respondent 1 herein.
7. Respondent 1 filed an application for being substituted in place of Hira Lal Sarawgee, its vendor, in the two appeals pending in the High Court as well as in the execution petition. The High Court vide order dated 28-4-1998 declined to implead Respondent 1 as a party in First Appeal No. 164 of 1989 arising from the decree of ejectment against Respondent 2 and ordered his impleadment in FA No. 348 of 1995 i.e the appeal arising from the order of mesne profits. This was perhaps done for the purpose of appeal only.
8. The executing court relying upon the decision of the High Court dated 28-4-1998 declined to implead Respondent 1 as a party in place of Hira Lal Sarawgee, its vendor.
9. Aggrieved against the order passed by the executing court Respondent 1 filed revision application in the High Court being CO No. 644 of 2000 which has been accepted by the impugned order. The High Court has set aside the order passed by the executing court and allowed the application filed by Respondent 1 for impleadment. Accordingly, Respondent 1 was ordered to be impleaded as a party-respondent in the execution petition.
10. Aggrieved against the impugned order of the High Court, the present appeal by grant of special leave has been filed.
11. This Court after detailed consideration of the case-law in Raj Kumar v. Sardari Lal (2004) 2 SCC 601 has held that the transferee pendente lite is treated in the eye of the law as a representative-in-interest of the judgment-debtor and bound by the decree passed against the judgment-debtor. In case of an assignment, creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 CPC confers a discretion on the court hearing the suit to grant leave to the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing on a lis pendens transferee on record is not as of right but in the discretion of the court.
12. To the similar effect is the judgment of this Court in Amit Kumar Shaw v. Farida Khatoon JT (2005) 5 SC 20, (2005) 11 SCC 403. It has been observed as follows:
“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, whether 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 is under no obligation to make a lis pendens transferee a party; under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where the transferee pendente lite is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.”
13. In view of the law laid down by this Court in the aforesaid two judgments, we are unable to find any fault with the view taken by the High Court. This apart the High Court has already impleaded Respondent 1 as a party-respondent in the proceedings in the same suit arising from the determination of mesne profits. If Respondent 1 is to be impleaded as a party-respondent in the execution petition relating to the mesne profits we find no reason not to implead it as a party-petitioner in the execution of the decree for ejectment.
14. For the reasons stated above, we do not find any merit in this appeal and dismiss the same. Parties shall bear their own costs.
Contempt Petition (C) No. 513 of 2004 in CA No. 6458 of 2001
15. In view of the order passed today in the main appeal, contempt petition has become infructuous and is dismissed as such. Rule discharged.