JUDGMENT Arun Tandon, J.
1. Heard Sri S.S. Shukla, Advocate on behalf of the petitioners, Sri Ashutosh Mishra, Advocate on behalf of respondent No. 2 and learned Standing Counsel on behalf of respondent No. 1. Respondent No. 3, Smt. Ataro Devi, who is the wife of respondent No. 2, Sri Prakash, despite notice has not put in appearance.
2. The Facts giving rise to the present writ petition are that in respect of the property situated at Mohanpura, Turas Nagar, Ghaziabad, Sri Prakash/Prakash Chandra, respondent No. 2 husband of Ataro Devi, respondent No. 3 entered into an agreement with Sri Moti Ram Behal and Smt. Kusum Lata on 16th October, 1974 for sale of property in question. Since the aforesaid agreement was not performed Sri Moti Ram Behal and Smt. Kusum Lata filed Original Suit No. 213 of 1976. The said suit was decreed vide order dated 30th March, 1982 in favour of the plaintiffs. Feeling aggrieved by the aforesaid order of the trial court, Sri Prakash, respondent No. 2 filed Fist Appeal No. 221 of 1982 before this Court. During the pendency of the said appeal, on 14th November, 1983 the parties arrived at a compromise as a result whereof, the first appeal filed by respondent No. 2 was dismissed in view of the compromise dated 24th August, 1995. Smt. Ataro Devi, respondent No. 3, wife of Sri Prakash thereafter filed Suit No. 145 of 1987 against Sri Prakash for declaration that the land which had been purchased by Sri Prakash Chand was Benami, and she was the true owners of the said property in question. The said suit was decreed by the trial Court vide judgment and order dated 18th May, 1987. During the subsistence of the aforesaid decree Smt. Ataro Devi sold the land, which was subject matter of Suit No. 145 of 1987 by way of eight sale deeds to different persons including the petitioners for valuable consideration wherein the husband of Smt. Ataro Devi was one of the attesting witness. After the sale deeds have been executed in favour of the purchasers with regard to the land sold by Smt. Ataro Devi, wife of respondent No. 2 after taking full payment of consideration, an application for setting aside the ex parte judgment and decree dated 18th May, 1987 passed in Suit No. 145 of 1987 was filed by Sri Prakash, the husband of respondent No. 2 on the ground that the decree was fraudulent.
3. The said application was filed for the first time in the year 1999 and was registered as Misc. Case No. 134 of 1999 (Prakash Chandra v. Ataro Devi). The petitioners, who were bona fide purchasers of the land sold by Smt. Ataro Devi moved an application for impleadment as defendants in the said suit for opposing the said application of restoration filed by the husband of Smt. Ataro Devi.
4. The Trial Court by means of order dated 17th January, 2002 rejected the application for restoration filed by the husband of Smt. Ataro Devi on the ground that the proper course was to file a regular suit to set aside the judgment and decree dated 18th May, 1987. Feeling aggrieved by the aforesaid order of the trial court refusing to set aside the ex parte judgment and order dated 18th May, 1987, the husband of Smt. Ataro Devi preferred an appeal before the District Judge, Ghaziabad, which was numbered as Misc. Appeal No. 23 of 2002 (Prakash v. Smt. Ataro Devi). In the said appeal filed by the husband of Smt. Ataro Devi the petitioners filed an application for impleadment in view of the facts, which have been noticed hereinabove. The application for impleadment so filed by the petitioners as well as the appeal so filed by the husband of Smt. Ataro Devi have been decided by the appellate court by means of the judgment and order dated 26th February, 2003. The Appellate Court allowed the appeal filed by the husband of Smt. Ataro Devi and set aside the order dated 17th January, 2002 passed by the trial court, as also allowed the restoration application filed by the respondent No. 2, husband of Smt. Ataro Devi. The impleadment application filed by the present petitioners has been rejected by the appellate Court with a liberty to seek impleadment as defendants in original suit itself. It is against this judgment and order of the appellate Court that the present writ petition has been filed by the petitioners.
5. On behalf of the petitioners it is contended that they are bona fide purchasers of the property during the subsistence of the judgment and decree dated 18th May, 1987, which was passed in the Original Suit No. 145 of 1987 initiated by Smt. Ataro Devi against her husband, Sri Prakash and therefore they were necessary party to the said suit proceedings, inasmuch as if the judgment and decree passed in the said suit itself, wherein Smt. Ataro Devi was declared to be the true owner of the property in question is set aside the transactions made by her would be put in jeopardy. It is further contended that the order of first appellate court refusing impleadment of the petitioners in the appeal, which was filed against the order of the trial court and also refusing to set aside the ex parte judgment and order dated 18th May, 1987 passed in Original Suit, is patently illegal. Liberty granted for seeking impleadment in the suit itself is only a camouflage to defeat the rights of the petitioner, and the collusion between the husband and wife, namely, Sri Prakash and Smt. Ataro Devi respectively is writ large in the suit proceedings as well as in the present writ proceedings.
6. Sri Ashutosh Srivastava, Advocate on behalf of the respondent No. 2, made a statement that the respondent No. 2 does not live with his wife, Smt. Ataro Devi for the last 25-30 years and she has married another person. There is no collusion between respondent Nos. 2 and 3 to defraud of the petitioners of the money. In these circumstances, it Is contended that the order passed by the appellate court rejecting the impleadment application of the petitioners with liberty to seek impleadment in Original Suit itself, may not be interfered with under Article 226 of the Constitution of India.
7. I have heard learned counsel for the parties and have gone through the records.
8. From the records it is apparently clear that Smt. Ataro Devi, respondent No. 3, wife of Sri Prakash/Prakash Chandra, respondent No. 2, who was defendant in Suit No. 145 of 1987, which was decreed by the trial court on 18th May, 1987 has sold the property, of which she was declared to be true owner, by way of registered sale-deeds between 28th July, 1992 and 3rd March, 1998 (a copy of the sale deeds executed in favour of the petitioners has been brought on record before this Court as Annexure No. 4 to the writ petition). The sale deed bears signatures of one Sri Prakash Chandra as witness No. 2 (Reference; Page 50 of the paper book of the writ petition). It is further apparently clear that during this period of six years between 1992 to 1998, Smt. Ataro Devi had executed eight sale deeds in favour of different persons for valuable consideration. The aforesaid sale deeds were never objected to by Sri Prakash/Prakash Chandra. It is surprising that after the entire land was sold by Smt. Ataro Devi, Sri Prakash/Prakash Chandra husband of Smt. Ataro Devi for the first time moved an application in the year 1999 for setting aside the judgment and order of the trial court dated 18th May, 1987 passed in Original Suit No. 145 of 1987 (Smt. Ataro Devi v. Prakash Chandra) on the ground that the said judgment and decree of the trial court has been passed ex parte and was out come of fraud.
9. Learned counsel for the petitioners has also brought on record a copy of the loan agreement executed between Sri Prakash Chandra in respect of money advanced by Indian Overseas Bank Ltd. Branch Ghaziabad on 18th August, 1995 wherein Smt. Ataro Devi is one of the guarantors as also her son claiming themselves to be the owner of property in question, which is subject matter of the present dispute.
10. In view of the aforesaid facts, specifically since the petitioners were bona fide purchasers of the property in question for valuable considerations in pursuance of the judgment and decree dated 18th May, 1987 passed in Original Suit No. 145 of 1987, this Court is of the opinion that the petitioners were necessary parties in the application filed by Sri Prakash, husband of Smt. Ataro Devi for setting aside the judgment and order dated 18th May, 1987 granted by the trial in favour of Smt. Ataro Devi, inasmuch as it was in the interest of the petitioners that the alleged ex parte judgment and order passed in Original Suit No. 145 of 1987 be not set aside, as the right of Smt. Ataro Devi to transfer the property itself may come under cloud, resulting in the sale deeds being rendered null and void. In such circumstances this Court has no hesitation to hold that the petitioners were necessary party, to be heard before setting aside the judgment and decree passed in Original Suit No. 145 of 1987.
11. The trial court while rejecting the application of the petitioners for impleadment had held that the application for setting aside the judgment and decree dated 18th May, 1987 having been rejected, no suit proceedings survive, therefore, the question of impleadment of the petitioners does not arise.
12. It was not necessary for the petitioners to challenge the said order inasmuch as the judgment and decree passed in favour of Smt. Ataro Devi was maintained, and, there was no cause for the petitioners to approach any higher court.
13. In view of the aforesaid the judgment and order passed by the appellate court dated 26th February, 2003 in Misc. Appeal No. 23 of 2002 (Prakash v. Smt. Ataro Devi) cannot be legally sustained and is hereby quashed. The appellate Court is directed to consider the application of the petitioners for impleadment in the said appeal as defendants-respondents strictly in the light of the observations made herein above and thereafter to decide the appeal after affording opportunity of hearing to the parties afresh.
14. The appellate Court shall record specific findings in respect of following issues:
(a) Whether in the sale-deeds executed by Smt. Ataro Devi between 1992-98 her husband, Sri Prakash/Prakash Chandra has singed as one of the witnesses of the sale deed or not?
(b) Whether in the loan agreement executed by Sri Prakash/Prakash Chandra, husband of Smt. Ataro Devi, with the Indian Overseas Bank, Smt. Ataro Devi was one of the guarantors or not?
(c) Whether Smt. Ataro Devi ever lived at a place other than her husband's house at any point of time or not?
15. If on the basis of the findings so recorded, the appellate court comes to the conclusion that Sri Prakash/Prakash Chandra has made an attempt to interfere with the administration of justice by making false and frivolous case for recall of the judgment and order dated 18th May, 1987 passed in Original Suit No. 145 of 1987, the appellate court shall recommend appropriate action in accordance with law.
16. In view of the aforesaid the writ petition is allowed.