In this civil revision petition, the fair and decreetal orders, dated 05.12.2007, passed in unnumbered I.A.No......of 2007 in O.S.No.251 of 1994, on the file of the Sub Court, Thoothukudi, are being challenged.
2. It is found that the respondents 1 and 2 are the plaintiffs and the respondents 3 and 4 are the defendant in the suit in O.S.No.251 of 1994. It is further found the said suit has been laid for partition. It is further found that the said suit had been contested by the defendants by filing a written statement. However, it is found that in culmination, an ex parte preliminary decree had come to be passed in the suit on 11.08.2003 and thereafter, it is found that the plaintiffs preferred I.A.No.194 of 2004 for passing a final decree in terms of the preliminary decree and accordingly, it is seen that an ex parte final decree had also come to be passed in the suit on 30.09.2005. It is further seen that the plaintiffs had levied execution proceedings in E.P.No.43 of 2006 for recovery of possession of the properties allotted to them by way of the final decree passed in the suit. While the matter stood thus, it is found that the petitioners, who are third parties to the proceedings, had preferred an application, under Order IX Rule 13 r/w Sections 146 and 151 of the Code of Civil Procedure, mainly contending that the respondents 3 and 4 / defendants, during the pendency of the suit, have alienated the first item of the third schedule properties to one Subramanian Chettiar on 22.06.2001 and accordingly, handed over the possession of the said property to the purchaser Subramanian Chettiar and thereafter, according to the petitioners, they had purchased the above said property for a valid consideration, on 05.02.2007 from Subramanian Chettiar and accordingly, he had delivered the possession of the same to them and inasmuch as the respondents 3 and 4 / defendants knew very well about the conveyance of the title of the said property to Subramanian Chettiar and in turn, Subramanian Chettiar, having conveyed the same in favour of the petitioners, the respondents 3 and 4 should have brought to the notice of the Court about the above said alienations and accordingly, sought permission of the Court to implead the petitioners in the suit proceedings, however, they had deliberately failed to take steps to implead the petitioners and on the other hand, according to the petitioners, the respondents 3 and 4 / defendants, in collusion with the respondents 1 and 2 / plaintiffs schemed to knock away the properties inclusive of the property, which the petitioners had purchased as above stated and in such view of the matter, it is stated that on account of the fraud committed by the parties involved in the suit proceedings and inasmuch as thereby the interest of the petitioners had been seriously affected and the decrees seem to have been obtained by the plaintiffs in collusion with the defendants, without bringing to the knowledge of the Court about the alienations made pendente lite, it is the case of the petitioners that a fraud has been committed by the plaintiffs and the defendants and hence, according to them, the ex parte preliminary and final decrees in the suit are liable to be set aside and hence, the petitioners had come come forward with the above said application, under Order IX Rule 13 r/w Sections 146 and 151 of the Code of Civil Procedure.
3. The above said application of the petitioners was returned by the Court concerned as the final decree had been passed in the suit on 30.09.2005 and further as the petitioners are not parties in the suit and to state how the application is maintainable. The petitioners had re-presented the application contending that Section 151 C.P.C., can be invoked to serve the ends of justice and also to prevent the abuse of process of the Court and inasmuch as they had purchased one of the items of the suit schedule properties as above stated pendente lite and after sale, as the defendants remained ex parte and consequently, ex parte preliminary and final decrees had come to be passed and as the decrees have come to be passed in collusion of the plaintiffs and the defendants and as the Commissioner had also failed to bring it to the notice of the Court about the petitioners' possession at the time of passing final decree, the Court had also been misled in the proceedings and hence, as fraud has been committed by the parties to the suit, according to the petitioners, the application preferred by them is maintainable as per certain decisions relied upon by them.
4. In view of the above said resistance put forth by the petitioners to the order of return made by the Court, it is found that the Court finally noting that the suit having been filed in the year 1994 and the preliminary decree having been passed on 11.08.2003 and the final decree having been passed on 30.09.2005 and in such view of the matter, inasmuch as the petitioners are not parties in the proceedings, held that the application laid by the petitioners is not maintainable and the decisions relied upon by the petitioners are not applicable to the facts and circumstances and acceptable reasonings have not been given that the decrees had been passed in the suit on account of the fraud and collusion and when the final decree had come to be passed on the basis of the Commissioner's report and further there is a delay of four years in the filing of the application and as the provisions of law relied upon the petitioners are found to be not applicable, rejected the application. Impugning the same, the present civil revision petition has been preferred.
5. It is the contention of the learned counsel for the petitioners that when it is the case of the petitioners that they had purchased one of the items of the suit schedule properties pendente lite as above stated and when the said fact is known to the defendants, the defendants owe a duty to bring the same to the knowledge of the Court and invite the Court's permission to implead the petitioners as parties to the suit proceedings and on the other hand, the defendants have suppressed the same and further as the defendants and the plaintiffs have in collusion obtained the decrees passed in the suit as above stated and by way of the above said decrees, the petitioners having been put to loss and only recently, the petitioners have come to know about the above said developments, they have been necessitated to set aside the ex parte decree passed in the suit. As to the determination of the Court below that the application is not maintainable, it is the contention of the learned counsel for the petitioners that a combined reading of Order IX Rule 13 and Order XXII Rule 10 and Section 146 C.P.C., would go to show that the petitioners having purchased one of the items of the suit properties from the respondents 3 and 4 / defendants, the petitioners in turn should be held to have derived title of the property concerned from the said defendants and accordingly, the defendants having remained ex parte and when according to the petitioners, they had remained ex parte in furtherance of the collusion made with the plaintiffs and thereby, the defendants having failed to bring it to the knowledge of the Court about the purchase of the property concerned by the petitioners and consequently, committed the fraud on the Court, it is the case of the petitioners that in the light of the decision of the Apex Court reported in (2004) 2 SCC 601 (Raj Kumar vs. Sardari Lal and others), their application under Order IX Rule 13 r/w Section 146 and 151 C.P.C., is maintainable and accordingly, prayed to set aside the impugned order and to the direct the Court below to take the application on file and dispose of the same on merits and in accordance with law.
6. Countering to the above submissions, the learned counsel for the respondents contended that the petitioners being not parties to the suit proceedings are not entitled to maintain the application under Order IX Rule 13 C.P.C., to set aside the decrees passed in the suit and further, there is no material placed to hold that the plaintiffs and the defendants had acted in collusion and thereby, committed a fraud upon the Court and when, according to the petitioners, they had purchased one of the items of the suit properties pendente lite, it is contended that the petitioners being the purchasers pendente lite whatever the decree that would be passed in the suit would equally bind upon them and inasmuch as the petitioners have also not preferred the application in time and as the petitioners have not established their entitlement to maintain the application, it is stated that the Court below has rightly rejected the application and hence, the impugned order does not call for any interference.
7. No doubt, the petitioners are third parties to the suit proceedings. However, it is the case of the petitioners that pendente lite their vendor and subsequently, the petitioners had purchased one of the items of the suit properties from the defendants. Therefore, according to them, the defendants being aware of the same should have apprised to the Court the above said developments and the defendants have suppressed the same and remained ex parte and not contesting the suit laid by the plaintiffs, the inevitable conclusion would be that the decrees had been obtained in suit only pursuant to the collusion made between the plaintiffs and the defendants and in such view of the matter, on account of the purchase of one of the items of the suit properties, the passing of the decrees in the suit would materially affect the interest of the petitioners in respect of the purchased item and hence, they had been necessitated to set aside the ex parte decree passed in the suit. In this connection, strong reliance is placed upon the decision of the Apex Court as cited above. A perusal of the said decision would go to show that the Apex Court, on a combined reading of Section 146, Order XXII Rule 10 and Order IX Rule 13 C.P.C., finally concluded that a lis pendens transferee though not brought on record under Order XXII Rule 10 C.P.C., is entitled to move an application under Order IX Rule 13 to set aside the decrees passed against his transferrer / defendant in the suit. Therefore, it is found that as such the petitioners' case being that they are the purchasers pendente lite, they are entitled to maintain the application under Order IX Rule 13 C.P.C., as per the above said decision of the Apex Court and in such view of the matter, according to them, the order of the Court below in rejecting their application is not sustainable in the eyes of law. Further, the learned counsel for the petitioners also relied upon the decision reported in 2013 (2) CTC 104 [Thomson Press (India) Ltd., vs. Nanak Builders & Investors P. Ltd., and another].
8. In the light of the above cited decision, it is found that on a combined reading of the provisions of law above stated, it is seen that a transferee pendente lite would be entitled to maintain the application under Order IX Rule 13 C.P.C., to set aside the ex parte decrees passed against their transferrer in the suit proceedings. Therefore, prima facie it is found that the transferee pendente lite is entitled to maintain the application under Order IX Rule 13 C.P.C.
9. Now, considering the facts and circumstances of the present case, it is found that the above said application has been preferred by the petitioners to set aside the ex parte preliminary decree and ex parte final decree passed in the suit proceedings. It is found that the preliminary decree had come to be passed on 11.08.2003 and the final decree had come to be passed on 30.09.2005. In such view of the matter, when the decrees above stated have been passed on different dates and in different situations, considering the facts and circumstances of the case prevailing then, it is not established by the petitioners as to how they could maintain a single application to set aside the both ex parte preliminary decree and ex parte final decree passed in the suit. When the cause of action for setting aside the said decrees are found to be different, it is seen that on the above score, the single application laid by the petitioners to set aside the above said decrees passed in the suit is not maintainable.
10. Now, according to the petitioners, as seen from the affidavit filed by them in support of the application, they had come to learn that the plaintiffs have obtained an ex parte preliminary decree on 11.08.2003 and in consequence, they have got an ex parte final decree in the suit proceedings. However, it is not stated as to when the petitioners have come to know about the passing of the ex parte preliminary decree and the ex parte final decree in the suit proceedings. Very vaguely, they have stated that they have come to learn about the same. Subsequently, it is also stated by them that only on 12.11.2007 when the Amin from the Court demanded the vacant possession from them, they had come to know about the suit proceedings. Even with reference to the same, there is no material worthwhile acceptance forthcoming. Therefore, it is found that the petitioners having come forward with an application to set aside the decrees passed in the suit on different dates and the above said decrees having come to be passed on different situations, it is found that when further the petitioners have not established prima facie that they had come to know about the decrees passed in the suit only on 12.11.2007 as stated by them and with reference to their knowledge about the passing of the decrees in the suit, the plea in the application is very vague and the Court below also noted that the applications have not been preferred in time and the petitioners have come forward with the application nearly four years after the passing of the preliminary decree and two years after the passing of the final decree, it is found that the application laid by the petitioners simpliciter for setting aside the ex parte decrees without necessary applications to condone the delay in filing the same is not maintainable.
11. As seen from the contentions of the petitioners, it is found that the petitioners have claimed the right to set aside the ex parte decrees passed in the suit, they being transferees pendente lite, on the footing that they had derived the right to the property purchased by them from the defendants and thereby claim to have right to maintain the application by stepping into the shoes of the defendants. When it is not the case of the petitioners that the defendants have no knowledge about the decrees passed in the suit and the inevitable conclusion being that the defendants have knowledge about the passing of the decrees in the suit and when the petitioners claim right to maintain the application only through the defendants, it is found that on the above ground also, the petitioners should have moved necessary applications to condone the delay in filing the application to set aside the ex parte decrees passed in the suit. It is, thus, found that when obviously there is enormous delay in the filing of the application to set aside the decrees passed in the suit and when no requisite applications having been preferred by the petitioners to condone the delay, it is found that on that score also the application preferred by the petitioners is not maintainable.
12. In view of the foregoing reasons, though it is found that a transferee pendente lite is entitled to maintain the application under Order IX Rule 13 C.P.C., to set aside ex parte decrees passed against his transferrer as per the decision of the Apex Court, as the application preferred by the petitioners had not conformed to the requirements of law, as above discussed, in my considered opinion, the application laid by the petitioners is not maintainable and on the above said grounds, it is found that the application cannot be entertained. Though this Court has come to the conclusion that the application laid by the petitioners is not maintainable on different reasonings, inasmuch as the outcome of the impugned order of the Court below is the rejection of the application laid by the petitioner as not maintainable, for the reasons aforestated, the impugned order of the Court below is confirmed.
13. Resultantly, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.
To:
The Sub Judge, Thoothukudi .