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2022 SCC OnLine All 20 : (2022) 151 ALR 145 : (2022) 2 All LJ
215 : AIR 2022 All 90 : (2022) 155 RD 379 : ILR (2022) 1 All 894

In the High Court of Allahabad†

(BEFORE RAJAN ROY, J.)

Anil Kumar Singh … Revisionist;

Versus
Pappu and Others … Opposite Parties.
Civil Revision No. - 102 of 2019
Decided on January 10, 2022, [Reserved on : 09.11.2021]
Advocates who appeared in this case:
Counsel for Revisionist : - Ashish Chaturvedi
Counsel for Opposite Party : - Manish Mehrotra, Manoj Kumar Tiwari,
Mohammad Aslam Khan, Mohd. Danish, Sudhanshu Chauhan, Virend
Singh
The Judgment of the Court was delivered by
RAJAN ROY, J.:— This is a revision filed by the plaintiff under section
115 of the Code of Civil Procedure challenging an order dated
31.10.2019 passed by the Civil Judge, Junior Division, Lucknow,
allowing an application bearing No. A-47 filed by the transferees
pendent lite for impleadment.
2. The application A-47 has been allowed by the Court below on the
finding that the applicants (respondent nos. 3 and 4 in the revision) are
the bona fide purchasers whose presence is necessary in order to
enable court to effectually and completely adjudicate upon and settle
all the questions involved in the suit.
3. The facts of the case, in brief, are that respondent no. 1 and 2
(defendant nos. 1 and 2 in the suit) entered into an agreement to sell
in respect to the suit property on 8.5.2015 with the revisionist-plaintiff,
but failed to perform their part of the agreement, consequently a suit
for specific performance of contract was filed by the revisionist on
5.10.2016 before the court below at Lucknow. The civil court issued
summons which were served upon defendant nos. 1 and 2 on
20.10.2016. Thereafter, i.e., during pendency of the said suit bearing
No. 1857 of 2016, Anil Kumar Singh v. Pappu, defendant nos. 1 and 2
(respondent nos. 1 and 2 in the revision) executed a sale-deed in
favour of defendant nos. 3 and 4 (respondent nos. 3 and 4 in the
revision) on 23.11.2016 which, according to the revisionists' counsel
was hit by section 52 of the Transfer of Property Act 1882. The
defendant nos. 1 and 2 filed their written statement on 21.2.2018 and
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issues were framed by the Civil Court on 15.5.2018. On 1.12.2018 P.W.

1 was examined. He was cross-examined by the defendant nos. 1 and 2
on 13.12.2018. On 9.1.2019 P.W.2 was examined. He was cross-
examined on 19.10.2019. In the interregnum when the matter was
fixed for examination of Defence witness 2, respondent nos. 3 and 4
filed an application bearing no. A-47 for their impleadment on 5.7.2019
stating that they had purchased the suit property vide sale-deed dated
23.11.2016. It is this application which has been allowed by the
impugned order dated 31.10.2019. Contention of Sri. N.K. Seth,
learned counsel for the revisionist was that the plaintiff being the
dominus litis cannot be compelled to implead stranger in the suit,
especially a transferee pendent lite as neither any relief has been
sought against him nor is he a necessary or proper party in the matter.
It was his submission that the issues involved in the suit are between
the plaintiff and defendant nos. 1 and 2 who had entered into an
Agreement-to-sell and the plaintiffs are claiming their rights against
the said defendants. In this regard he has placed reliance upon a
decision of this court in the case of Gurmit Singh Bhatia v. Kiran Kant
Robinson, 2019 SCC OnLine SC 912 and another decision reported in
(2020) 14 SCC 392, Mohamed Hussain Gulam Ali Shariffi v. Municipal
Corporation of Greater Bombay. The other argument advanced by him
was that the objections raised by the revisionist before the Civil Court
were not even taken note of and without a proper consideration of
relevant aspects of the matter the impugned order has been passed. He
submitted that even the sale-deed was not annexed with the
application by the respondent nos. 3 and 4. The application for
impleadment did not even mention as to how and when they came to
know about the pendency of the suit. Their impleadment at the stage of
examination of defence witness 2 was prejudicial to the interest of the
plaintiff and would delay the suit. The applicants were not bona fide
purchasers. Purchase itself was hit by the doctrine of lis pendens. Sri.
Seth relied upon the decision reported in (2008) 7 SCC 144, Usha
Sinha v. Dina Ram; and another decision reported in (2010) 6 All LJ
425, Ram Swaroop Singh v. Karan Singh.
4. On the other hand, Sri. M.A. Khan, learned counsel appearing for
respondent nos. 3 and 4, i.e., the transferees pendent lite, submitted
that they were necessary and proper parties for a complete and
effective adjudication of the suit and the court below has rightly
allowed the application for impleadment. He invited attention of the
court to relevant clauses of the sale-deed to drive home the point that
the sale-deed did not disclose the pendency of the suit proceedings
between the plaintiff and defendant nos. 1 and 2 and that his clients
were bona fide purchasers. He submitted that the suit proceedings are
going on between the plaintiff and defendant nos. 1 and 2 in collusion.
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The transferees pendent lite are entitled to protect their rights as they
would be bound by the decree passed in the suit and also have a right
to challenge the said decree, therefore, no interference is called for in
exercise of the revisional jurisdiction under section 115, C.P.C. In this
regard he has relied on the decisions reported in (2012) 8 SCC 384,
Vidur Implex and Traders Pvt. Ltd. v. Tosh Apartments Pvt. Ltd.; (1992)
2 SCC 524, Ramesh Hirachand Kundanmal v. Municipal Corporation of
Greater Bombay; (2010) 111 RD 182, Dr. Shyam Chandra Srivastava v.
Estate of Padmasri Smt. Savitri Sahni; (2005) 11 SCC 403, Amit Kumar
Shaw v. Farida Khatoon; (2014) 4 ALJ 559, Shyama Devi v. A.D.J.
Sultanpur; (1996) 5 SCC 379, Aliji Momonji & co. v. Lalji Mavji; (2017)
3 SCC 194, Richard Lee v. Girish Soni. Learned counsel appearing for
the respondent nos. 1 and 2 informed the court that his clients were
opposing the claim of the plaintiff as also the claim of defendant nos. 3
and 4 based on the sale-deed dated 23.11.2016 which in fact has been
challenged by his clients seeking cancellation of the same, albeit, after
filing of the application for impleadment by respondent nos. 3 and 4.
He informed the court that his clients were contesting the suit and were
not in collusion with the plaintiff or for that matter with the
applicants/respondent nos. 3 and 4.
5. It has not been denied by the revisionist-plaintiff before this court
that sale-deed was executed by the defendant nos. 1 and 2 in favour of
the applicants/defendant nos. 3 and 4 on 23.11.2016 with respect to
the property which is the subject matter of the suit bearing no. 1857 of
2016.
6. Before proceeding to consider the merits of the issue it would be
worthwhile to refer to a few decisions as to the scope of revisional
jurisdiction under section 115, C.P.C. by the High Court. A Four Judges'
Bench of the Supreme Court of India had an occasion to consider this
aspect of the matter in the case of Kesardeo Chamria v. Radha Kissen
Chamria, (1952) 2 SCC 329 : AIR 1953 SC 23. Relevant extract of the
said judgment is quoted hereinbelow:
“17. We now proceed to consider whether a revision was
competent against the order of 25th April, 1945, when no appeal lay.
It seems to us that in this matter really the High Court entertained
an appeal in the guise of a revision. The revisional jurisdiction of the
High Court is set out in the 115th section of the Code of Civil
Procedure in these terms:
“The High Court may call for the record of any case which has
been decided by any court subordinate to such High Court and in
which appeal lies thereto, and it such subordinate court appears:
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with
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material irregularity, the High Court may make such order in

the case as it thinks fit.” A large number of cases have been
collected in the fourth edition of Chitaley & Rao's Code of Civil
Procedure (Vol. 1), which only serve to show that the High
Courts have not always appreciated the limits of the
jurisdiction conferred by this section. In Mohunt Bhagwan
Ramanuj Das v. Khetter Moni Dassn the High Court of Calcutta
expressed the opinion that sub-clause (c) of Section 115 of the
Civil Procedure Code, was intended to authorise the High
Courts to interfere and correct gross and palpable errors of
subordinate courts, so as to prevent grave injustice in non-
appealable cases. This decision was, however, dissented from
by the same High Court in Enat Mondul v. Baloram Dey but was
cited with approval by Lort-Williams, 3., in Gulabchand Bangur
v. Kabiruddin Ahmed. In these circumstances it is worthwhile
recalling again to mind the decisions of the Privy Council on
this subject and the limits stated therein for the exercise of
jurisdiction conferred by this section on the High Courts.
18. As long ago as 1894, in Rajah Amir Hassen Khan y. Sheo
Baksh Singhi the Privy Council made the following observations on
Section 622 of the former Code of Civil Procedure, which was
replaced by Section 115 of the Code of 1908:
“The question then is, did the Judges of the lower courts in this
case, in the exercise of their jurisdiction, act illegally or with
material irregularity. It appears that they had perfect jurisdiction
to decide the case, and even if they decided wrongly, they did not
exercise their jurisdiction illegally or with material irregularity.” In
1917 again in Balakrishna Udayar v. Vasudeva Aiyar the Board
observed:
“It will be observed that the section applies to jurisdiction
alone, the irregular exercise or non-exercise of it, or the illegal
assumption of it. The section is not directed against conclusions of
law or fact in which the question of jurisdiction is not involved.”
In 1949 in Venkatagiri Ayyangar v. Hindu Religious Endowments
Board, Madrass the Privy Council again examined the scope of
Section 115 and observed that they could see no justification for the
view that the section was intended to authorise the High Court to
interfere and correct gross and palpable errors of subordinate courts
so as to prevent grave injustice in non-appealable cases and that it
would be difficult to formulate any standard by which the degree of
error of subordinate courts could be measured. It was said-
“Section 115 applies only to cases in which no appeal lies, and,
where the legislature has provided no right of appeal, the
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manifest intention is that the order of the trial court, right or

wrong, shall be final. The section empowers the High Court to
satisfy itself on three matters, (a) that the order of the
subordinate court is within its jurisdiction; (b) that the case is one
in which the court ought to exercise jurisdiction; and (c) that in
exercising jurisdiction the court has not acted illegally. that is, in
breach of some provision of law, or with material irregularity, that
is, by committing some error of procedure in the course of the
trial which is material in that it may have affected the ultimate
decision. If the High Court is satisfied on those three matters, it
has no power to interfere because it differs, however from the
conclusions of the subordinate court on questions of fact or law.”
19. Later in the same year in Joy Chand Lal Babu v. Kamalaksha
Choudhuryis Their Lordships had again adverted to this matter and
reiterated what they had said in their earlier decision. They pointed
out:
“There have been a very large number of decisions of Indian
High Courts on Section 115 to many of which Their Lordships have
been referred. Some of such decisions prompt the observation
that High Courts have not always appreciated that although error
in a decision of a subordinate court does not by itself involve that
the subordinate court has acted illegally or with material
irregularity so as to justify Interference in revision under sub-
section (c), nevertheless, if the erroneous decision results in the
subordinate court exercising jurisdiction not vested in it by law, or
failing to exercise a jurisdiction so vested, a case for revision
arises under sub-section (a) or sub-section (b) and sub-section
(c) can be ignored.”
20. Reference may also be made to the observations of Bose, 3. in
his order of reference in Narayan Sonaji v. Sheshrao Vithobail
wherein it was said that the words “illegally” and “material
irregularity” do not cover either errors of fact or law. They do not
refer to the decision arrived at but to the manner in which it is
reached. The errors contemplated relate to material defects of
procedure and not to errors of either law or fact after the formalities
which the law prescribes have been complied with.”
7. Though section 115 C.P.C. has undergone some changes over the
years, especially so far as its application in the State of U.P. is
concerned and in addition to the requirements contained in Clause (a)
to (c) of section 115, C.P.C. which are required to be satisfied for
exercise of such revisional jurisdiction, now, by virtue of the U.P. Act 14
of 2003, two other requirements are required to be satisfied, (i) the
order if it had been made in favour of the party applying for revision,
would have finally disposed off the suit or other proceeding; or (ii) the
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order, if allowed to stand, would occasion a failure of justice or cause

irreparable injury to the party against whom it is made. However, as far
as clauses (a), (b) and (c) laying down the jurisdictional parameters for
exercise of revisional jurisdiction under section 115(1), C.P.C. they
stand as it is, therefore, to this extent the law as laid down in Kesardeo
Chhamaria (supra) applies even today as to the meaning and purport of
the said clauses.
8. It is not in dispute that the suit has been filed by the revisionist-
plaintiff for specific performance of contract against the defendant nos.
1 and 2 who had entered into an Agreement-to-sell with the plaintiff.
The defendant nos. 3 and 4 are not parties to the said Agreement-to-
sell, but, they have purchased the property which is the subject matter
of such Agreement-to-sell, during pendency of suit proceedings.
9. Now it is very well settled that section 52 of the Transfer of
Property Act and the doctrine of lis pendens on which it is based do not
operate to annul such transfers pendent lite, but, they operate to
render the same subservient to the rights of the parties to a litigation.
Such transfer is neither illegal nor void ab initio, but the subsequent
purchaser is bound by the litigation between the parties to the suit. A
reference may be made in this regard to the decision of the Supreme
Court of India in the case of Thomson Press (India) Ltd. v. Nanak
Builders & Investors (P.) Ltd., (2013) 5 SCC 397 (Paras 26 to 29). If
such sale is in violatioi of any injunction or restraint order than the legal
position may be different, but that is not the case here.
10. Now the question before this court is as to whether the court
below has committed a jurisdictional error so as to require interference
by this court in exercise of its revisional power under section 115 C.P.C.
as it applies in the State of U.P. or not?
11. It is implicit in this question as to whether the court below has
rightly exercised its jurisdiction in allowing the application of the
transferees pendent lite for impleadment in the suit of the revisionist
which is for specific performance of contract and in which relief claimed
is the defendant nos. 1 and 2, or not?
12. In this context we may first refer to the provisions contained in
Order I Rule 10 which reads as under:
“10. Suit in name of wrong plaintiff.-(1) Where a suit has been
instituted in the name of the wrong person as plaintiff or where it is
doubtful whether it has been instituted in the name of the right
plaintiff, the Court may at any stage of the suit, if satisfied that the
suit has been instituted through a bona fide mistake, and that it is
necessary for the determination of the real matter in dispute so to
do, order any other person to be substituted or added as plaintiff
upon such terms as the Court thinks just.
(2) Court may strike out or add parties.-The Court may at any
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stage of the prxdings, either upon or without the application of either

party, and on such terms as may appear to the Court to be just,
order that the name of any puty improperly joined, whether as
plaintiff or defendant, be struck out, and that the name of any
person who ought to have been joined, as plaintiff or defendant, or
whose presence before the Court may be necessary in order to
enable the Count effectually and completely to adjudicate upon and
settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing a next friend or
as the next friend of a plaintiff under any disability without his
consent.
(4) Where defendant added, plaint to be amended.-Where a
defendant is added, the plaint shall, unless the Court otherwise
directs, be amended in such manner as may be necessary, and
amended copies of the summons and of the plaint shall be served on
the new defendant and, if the Court thinks fit, on the original
defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877
(15 of 1877), Section 22, the proceedings as against any person
added as defendant shall be deemed to have begun only on the
service of the summons.
The court may in this this context fruitfully refer to the decision of
the Supreme Court in the case of Thomson Press India Ltd. (supra)
wherein after considering the provisions of Order I Rule 10, C.P.C. it
has been held … “From the bare reading of the aforesaid provision, it
is manifest that sub-rule (2) of Rule 10 gives a wider discretion to
the court to meet every case or defect of a party and to proceed with
a person who is either a necessary party or a proper party whose
presence in the court is essential for effective determination of the
issues involved in the suit.”
13. The court may also refer to another decision of the Supreme
Court in the case of Ramesh Hirachand Kundanmal v. Municipal Corpn.
of Greater Bombay, (1992) 2 SCC 524, which has also been considered
in the case of Thomson Press India Ltd., wherein it has been held as
under …
“14. It cannot be said that the main object of the rule is to
prevent multiplicity of actions though it may incidentally have that
effect. But that appears to be a desirable consequence of the rule
rather than its main objective. The person to be joined must be one
whose presence is necessary as a party. What makes a person a
necessary party is not merely that he has relevant evidence to give
on some of the questions involved; that would only make him a
necessary witness. It is not merely that he has an interest in the
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correct solution of some question involved and has thought of

relevant arguments to advance. The only reason which makes it
necessary to make a person a party to an action is so that he should
be bound by the result of the action and the question to be settled, a
therefore, must be a question in the action which cannot be
effectually and completely settled unless he is a party. The line has
been drawn on a wider construction of the rule between the direct
interest or the legal interest and commercial interest. It is, therefore,
necessary that the person must be directly or legally interested in
the action the answer i.e. he can say that the litigation may lead to
result which will affect him legally that is by curtailing his legal
rights. is difficult to say that the rule contemplates joining as a
defendant a person whose only object is to prosecute his own cause
of action. Similar provision was considered in Amon v. Raphael Tuck
& Sons Ltd., [1956] 1 Q.B. 357, wherein after quoting the
observations of Wynn-Parry, J. in Dollfus Mieget Compagnie SA v.
Bank of England, (1950) 2 All ER 605, that the true test lies not so
much in an analysis of what are the constituents of the applicants'
rights, but rather in what would be the result on the subject-matter
of the action if those rights could be established, Devlin, J. has
stated : (Amon casels, QB p. 371)
… the test is:“May the order for which the plaintiff is asking
directly affect the intervener in the enjoyment of his legal rights?”
14. The provisions of Order XXII Rule 10 also need to be referred
and they read as under:
“XXII Rule 10 Procedure in case of assignment before final order
in suit”
(1) In other cases of an assignment, creation or devolution of any
interest during the pendency of a suit, the suit may, by leave
of the Court, be continued by or against the person to or upon
whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall
be deemed to be an interest entitling the person who procured
such attachment to the benefit of sub-rule (1).”
In the context of the above quoted provision of Order XXII Rule
10 the court may refer to a Three Judge Bench decision of the
Supreme Court of India reported in (2005) 1 SCC 536, Government
of Orissa v. Ashok Transport Agency, wherein it has been held….
“9. Normally, in a case covered by Order 22 Rule 10 of the
Code of Civil Procedure where rights are derived by an assignee or
a successor-in-interest pending a litigation, it is for that assignee
or transferee to come on record if it so chooses and to defend the
suit. It is equally open to the assignee to trust its assignor to
defend the suit properly, but with the consequence that any
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decree against the assignor will be binding on it and would be

enforceable against it. Equally, in terms of Section 146 of the
Code of Civil Procedure, a proceeding could be taken against any
person claiming under the defendant or the judgment-debtor.
Similarly, a person claiming under the defendant or the judgment
-debtor could seek to challenge the decree or order that may be
passed against the defendant, by way of appeal or otherwise, in
the appropriate manner. But, it would not be open to it to
challenge the decree as void or unenforceable in execution in the
absence of any specific provision in that regard in the statute or
order bringing about such a transfer or assignment.”
15. In the case of Thomson Press India Ltd. (supra) Hon'ble Mr.
Justice T.S. Thakur as he then was, while rendering his supplementing
opinion held in the facts of the said case that the application which the
appellant made was only under Order I Rule 10, C.P.C., but enabling
provision of Order XXII Rule 10 C.P.C. could always be invoked if the
facts situation so demanded.
16. The Supreme Court in the case of Amit Kumar Shaw v. Farida
Khatoon, (2005) 11 SCC 403, opined that under Order XXII Rule 10 no
detailed inquiry at the stage of granting relief is contemplated. The
court has only to be prima facie satisfied for exercising its discretion in
granting relief for continuing the suit by or against the person on who
the interest has devolved by assignment or devolution. The question
about the existence and validity of the assignment and devolution can
be considered at the final hearing of the proceedings. It is also
necessary to refer to the provisions of section 146 C.P.C. which read as
under:
“146, C.P.C. : Save as otherwise provided by this Code or by any
law for the time being in force, where any proceeding may be taken
or application made by or against any person then the proceeding
may be taken or the application may be made by or against any
person claiming under him.”
17. It is also relevant to refer to section 19 of the Specific Relief Act
1963, especially clause (b) thereof which reads as under:
“19. Relief against parties and persons claiming under them by
subsequent title.—Except as otherwise provided by this Chapter,
specific performance of a contract may be enforced against-
(a) either party thereto;
(b) any other person claiming under him by a title arising
subsequently to the contract, except a transferee for value who
has paid his money in good faith and without notice of the
original contract;
(c) any person claiming under a title which, though prior to the
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contract and known to the plaintiff, might have been displaced

by the defendant;
(d) when a company has entered into a contract and subsequently
becomes amalgamated with another company, the new
company which arises out of the amalgamation;
(e) when the promoters of a company have, before its
incorporation, entered into a contract for the purpose of the
company and such contract is warranted by the terms of the
incorporation, the company:
Provided that the company has accepted the contract and
communicated such acceptance to the other party to the
contract.”
This clause was considered by the Supreme Court in the case of
Thomson Press India Ltd. (supra) and with reference to clause (b) of
section 19 it was observed … “From the bare reading of the aforesaid
provision, it is manifest that a contract for specific performance may
be enforced against the parties to the contract and the persons
mentioned in the said section. Clause (b) of Section 19 makes it very
clear that a suit for specific performance cannot be enforced against
a person who is a transferee from the vendor for valuable
consideration and without notice of the original contract which is
sought to be enforced in the suit.”
18. In this context their Lordship referred to a decision of the
Calcutta High Court in the case of Kafiladdin v. Samiraddin, AIR 1931
Cal 67, wherein the English law on the point was considered. It is
relevant to quote para 39 to 40 of the decision in Thomson Press India
Ltd. (supra) in this regard, which are as follows:
“39. As discussed above, a decree for specific performance of a
contract may be enforced against a person who claimed under the
plaintiff (sic 9 defendant), and title acquired subsequent to the
contract. There is no dispute that such transfer made in favour of the
subsequent purchaser is subject to the rider provided under Section
52 of the Transfer of Property Act and the restraint order passed by
the Court.
40. The aforesaid question was considered by the Calcutta High
Court in Kafiladdin v. Samiraddin20, where Their Lordships referred
to the English law on this point and quoted one of the passages of
the book authored by Dart, on Vendors and Purchasers', 8th Edn.,
Vol. 2, which reads as under : (Kafiladdin case)
‘Equity will enforce specific performance of the contract for sale
against the vendor himself and against all persons claiming under
him by a title arising subsequently to the contract except
purchasers for valuable consideration who have paid their money
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and taken a conveyance without notice to the original contract.’”

The decision of the Supreme Court in Thomson Press India Ltd.
was in respect of suit proceedings which were for specific
performance of contract just as in this case.
In Thomson Press India Ltd. (supra) the question as to what
would be the form of decree to be passed in a suit for specific
performance, especially one in which the suit property has been
transferred pendent lite came up for consideration and in this
context the Supreme Court referred to a decision of the Calcutta
High Court in the case of Kafilladdin (supra) as also another decision
of the Supreme Court in the case of Durga Prasad v. Deep Chand,
AIR 1954 SC 75, as also its decision in the case of R.C. Chandiok v.
Chunni Lal Sabbarwal, (1970) 3 SCC 140, and discussing the same
held as under:
“Discussing elaborately, the Court finally observed : (Kafladdin
case)
“This statement of the law is exactly what is meant by the first
two clauses of Section 27 of the Specific Relief Act. It is not
necessary to refer to the English cases in which decrees have
been passed against both the contracting party and the
subsequent purchaser. It is enough to mention some of them :
Daniels v. Davison [(1803) 13 All ER 432], Potter v. Sanders,
[(1846) 6 Hare 1] and Lightfoot v. Heron [(160 ER 835). The
question did not pertinently arise in any reported case in India;
but decrees in cases of specific performance of contract have been
passed in several cases in different forms. In Chunder Kant Roy v.
Krishna Sunder Roy, ILR (1884) 10 Cal 710, the decree passed
against the contracting party only was upheld. So it was in
Kannan v. Krishnan, ILR (1890) 13 Mad 324. In Himatlal Motilal v.
Vasudev Ganesh Mhaskar, ILR (1912) 36 Bom 446, the decree
passed against the contracting defendant and the subsequent
purchaser was approved. In Faki Ibrahim v. Faki Gulam Mohidin,
AIR 1921 Bom 459, the decree passed against the subsequent
purchaser only was adopted. In Gangaram v. Laxman Ganoba
Shet Chaudole, ILR (1916) 40 Bom 498, the suit was by the
subsequent purchaser and the decree was that he should convey
the property to the person holding the prior agreement to sale. It
would appear that the procedure adopted in passing decrees in
such cases is not uniform. But it is proper that English procedure
supported by the Specific Relief Act should be adopted. The
apparent reasoning is that unless both the contracting party and
the subsequent purchaser join in the conveyance it is possible
that subsequently difficulties may arise with regard to the
plaintiff's title.”
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41. The Supreme Court in Durga Prasad v. Deep Chand, AIR 1954
SC 75 referred to the aforementioned decision of the Calcutta High
Court in Kafiladdin case and finally held : (Durga Prasad case)
“42. In our opinion, the proper form of decree is to direct
specific performance of the contract between the vendor and the
plaintiff and direct the subsequent transferee to join in the
conveyance so as to pass on the title which resides in him to the
plaintiff. He does not join in any special covenants made between
the plaintiff and his vendors all he does is to pass on his title to
the plaintiff. This was the course followed by the Calcutta High
Court in Kafiladdin v. Samiraddin, and appears to be the English
practice. (See Fry on Specific Ivrformance, 6th Ed., p. 90. para
207 and also Potter v. Sanders) We direct accordingly.”
42. Again in R.C. Chandiok v. Chuni Lal Sabharwal this Court
refened to their earlier decision and observed : (SCC p. 146, para 9)
“9. It is common ground that the plot in dispute has been
transferred by the respondents and therefore the proper form of
the decree would be the same as indicated at SCR p. 369 in
Durga Prasad v. Deep Chand viz.
‘to direct specific performance of the contract between the
vendor and the plaintiff and direct the subsequent transferee to
join in the conveyance so as to pass on the title which resides in
him to the plaintiff. He does not join in any special covenants
made between the plaintiff and his vendor; all he does is to pass
on his title to the plaintiff (AIR p. 81, para 42)
We order accordingly. The decree of the courts below is hereby set
aside and the appeal is allowed with costs in this Court and the High
Court”
43. This Court again in Dwarka Prasad Singh v. Harikant Prosod
Singh subscribed to its earlier view and held that in a suit for specific
performance against a person with notice of a prior agreement of
sale is a necessary party.
44. Having regard to the law discussed hereinabove and in the
facts and circumstances of the case and also for the ends of justice
the appellant is to be added as party-defendant in the suit. The
appeal is, accordingly, allowed and the impugned orders passed by
the High Court are set aside.
45. Before parting with the order, it is clarified that the appellant
after impleadment as party-defendant shall be permitted to take all
such defences which are available to the vendor Sawhneys as the
appellant derived title, if any, from the vendor on the basis of
purchase of the suit property subsequent to the agreement with the
plaintiff and during the pendency of the suit.”
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19. From the aforesaid it is evident as was held in Kafilladdin's case

(supra) that unless both the contracting party and the subsequent
purchaser join in the conveyance it is possible that subsequent
difficulties may arise with regard to the plaintiff's title, that is why in
Durga Prasad (supra) the Supreme Court held that the proper form of
decree is to direct the specific performance of contract between the
vendor and the plaintiff and direct the subsequent person to join in the
conveyance so as to pass on the title which resides in him to the
plaintiff. He does not join in any special covenants made between the
plaintiff and his vendor; All he does is to pass on his title to the
plaintiff.
20. Based on the aforesaid discussion the appellant's appeal in
Thomson Press India Ltd. (supra) was allowed with the observations
that it should be added as a party-defendant in the suit and orders of
the High Court to the contrary were set aside, however, it was further
held that the appellant after impleadment as party-defendant shall be
permitted to take all such defences which are available to the vendors
as the appellant derived title, if any, from the vendor on the basis of
the purchase of the suit property subsequent to the Agreement with
the plaintiff and during the pendency of the suit. In fact, it has also
been held by the Supreme Court in the case of Ashok Transport Agency
(supra) that such a transferee pendent lite who is impleaded in the suit
as defendant cannot take a defence inconsistent with the defence
already set up by the defendant in its written statement, i.e., the
vendor from whom he has purchased the property during pendency of
the suit. Thus, the presence of such a transferee pendent lite is also
necessary for proper resolution of the dispute as ultimately if the suit of
the plaintiff is allowed, then the direction will be to this subsequent
transferee to execute the sale-deed in favour of the plaintiff and this
will avoid further complications, as observed by the Supreme Court
hereinabove. Moreover, the Supreme Court also considered the aspect
as to what happens if the original defendant looses interest in the
litigation or colludes with the plaintiff, therefore, to protect the rights of
the subsequent purchasee in this regard also it is necessary to implead
him as a defendant in the suit. In fact, a transferee pendent lite has
been held to be in a position somewhat similar to the position of an heir
or legatee of a party who dies during the pendency of a suit or
proceeding. Reference may be made in this regard to para-55 of the
supplementing opinion rendered by Hon'ble Justice T.S. Thakur in the
case of Thomos Press India Ltd. (supra) wherein reliance has been
placed upon a decision of the Supreme Court in the case of Khem
Chand Shankar Chaudhari v. Vishnu Hari Patil, (1983) 1 SCC 18, and
the decision of the Supreme Court in the case of Amit Kumar Shaw
(supra).
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21. We may also refer to the decision of the Supreme Court in the
case of Amit Kumar Shaw (supra) which though not a case relating to a
suit for specific performance of contract, nevertheless, considered the
entitlement of a transferee pendent lite to be impleaded in terms of
Order I Rule 10, Order XXII Rule 10 and section 146 of the C.P.C. In
the said case the Supreme Court held as under:
“14. An alienee pendente lite is bound by the final decree that
may be passed in the suit. Such an alienee can be brought on record
both under this rule as also under Order 1 Rule 10. Since under the
doctrine of lis pendens a decree passed in the suit during the
pendency of which a transfer is made binds the transferee, his
application to be brought on record should ordinarily be allowed.
15. Section 52 of the Transfer of Property Act is an expression of
the principle “pending a litigation nothing new should be
introduced”. It provides that pendente lite, neither party to the
litigation, in which any right to immovable property is in question,
can alienate or otherwise deal with suchproperty so as to affect his
appointment. This section is based on equity and good conscience
and is intended to protect the parties to litigation against alienations
by their opponent during the pendency of the suit. In order to
constitute a lis pendens, the following elements qust be present:
1. There must be a suit or proceeding pending in a court of
competent jurisdiction.
2. The suit or proceeding must not be collusive.
3. The litigation must be one in which right to immovable
property directly and specifically in question.
4. There must be a transfer of or otherwise dealing with the
property in dispute by any party to the litigation.
5. Such transfer must affect the rights of the other party that may
ultimately accrue under the terms of the decree or order. 16.
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, where 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 alience pendente lite may be joined as party. As already
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noticed, the court has discretion in the matter which must be

judicially exercised and an alience 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 his predecessor-in-interest
is made a party to the litigation; he is entitled to be heard in
the matter on the merits of the case.”
22. We may also in this context refer to the decision of the Hon'ble
Supreme Court of India in the case of Gurmit Singh Bhatia (supra)
upon which great reliance was placed by learned counsel for the
revisionist. The said decision has considered the three Judge Bench
decision in the case of Kasturi v. Iyyamperumal, (2005) 6 SCC 733. The
Supreme court in the case of Kasturi (supra) had the occasion to
consider the question - Whether in a suit for specific performance of a
contract for sale of a property instituted by a purchaser against the
vendor, a stranger or a third party to the contract claiming to have an
independent title or possession over the contracted property is entitled
to be added as a party-defendant in the suit ? In the said case the
person seeking impleadment was claiming adversely to the claim of the
vendor, meaning thereby he was setting up a title independent of the
parties to the suit, therefore, the Supreme Court declined his claim as it
would enlarge the scope of the suit which was a suit for specific
performance to one which would become a suit for title viz.-a-viz. the
parties thereto, however, the Supreme Court held that in that very
context in no uncertain terms that a person who had purchased the
contracted property from the vendor was a necessary party. In this
context the Supreme Court considered the scope of Order I Rule 10
C.P.C., specifically sub-Rule (2) of order I Rule 10, C.P.C., which
empowers the court to add a person who ought to have been joined or
whose presence before the court may be necessary in order to enable
the court effectually and completely to adjudicate upon and settle all
the questions involved in the suit. The court opined as under:
“7. In our view, a bare reading of this provision, namely, second
part of Order 1 Rule 10 sub-rule (2) CPC would clearly show that the
necessary parties in a suit for specific performance of a contract for
sale are the parties to the contract or if they are dead, their legal
representatives as also a person who had purchased the contracted
property from the vendor. In equity as well as in law, the contract
constitutes rights and also regulates the liabilities of the parties. A
purchaser is a necessary party as he would be affected if he had
purchased with or without notice of the contract, but a person who
claims adversely to the claim of a vendor is, however, not a
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necessary party. From the above, it is now clear that two tests are to
be satisfied for determining the question who is a necessary party.
Tests are (1) there must be a right to some relief against such party
in respect of the controversies involved in the proceedings; (2) no
effective decree can be passed in the absence of such party.”
23. A three Judge Bench of this court in the case of Kasturi (supra)
has very categorically held, as quoted hereinabove, that necessary
parties in a suit for specific performance of contract for sale are the
parties to the contract or if they are dead, their legal representatives as
also a person who had purchased the contracted party from the vendor.
It has gone on to hold that “a purchaser is a necessary party, as he
would be effected if he has purchased with or without notice of the
contract”.
24. In this context it also considered the provisions of section 19 of
the Specific Relief Act which have already been quoted hereinabove and
opined that this section is exhaustive on the question as to who are the
parties against whom a contract for specific performance may be
enforced. The Supreme Court in Kasturi (supra) very categorically
observed in para-8 of the report - “We may look to this problem from
another angle. Section-19 of the Specific Relief Act 1963 provides relief
against parties and persons claiming under them by subsequent title.
After considering section 19(a) to (e) of the Specific Relief Act 1963 the
Supreme Court observed-
“9. We have carefully considered sub-sections (a) to (e) of Section
19 of the Act. From a careful examination of the aforesaid provisions
of clauses (a) to (e) of the Specific Relief Act we are of the view that
the persons seeking addition in the suit for specific performance of
the contract for sale who were not claiming under the vendor but
they were claiming adverse to the title of the vendor do not fall in
any of the categories enumerated in sub-sections (a) to (e) of
Section 19 of the Specific Relief Act.”
25. Thus, a subsequent purchaser pendent lite is also covered under
section 19, but not a person who is not claiming under the vendor, but
are claiming against the title of the vendor. Clause (b) of section 19 has
already been referred earlier. According to it, a transferee pendente lite
who has purchased the property for value in good faith without notice
of the original contract is an exception to the person against whom
relief of specific performance can be sought. This, therefore, is an
aspect which will have to be seen in the suit proceedings for which
presence of the respondent nos. 3 and 4 is necessary, especially as,
they will be bound by the decree passed therein.
26. Now as already stated in the facts of the said case as the
applicant who was seeking impleadment was a stranger in the sense
that he was claiming independent and adverse title to the parties to the
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suit, therefore, in that context the Supreme Court of India observed

that the plaintiff was not under a compulsion to implead such a party
he being dominus litis, therefore, observations in para-18 of the said
decision have to be read accordingly. In Kasturi's case (supra) the
applicants seeking impleadment was claiming title adverse to the
parties to the suit, therefore, it was held that the plaintiff being
dominus litis could not be compelled to implead him as there was no
compulsion in law to implead such a person. This does not mean that a
subsequent purchaser pendent lite who is claiming through one of the
parties/vendors and has acquired an interest in the property would not
be a necessary party. In fact, the decision in Kasturi (supra) very
categorically states that he would be a necessary and proper party.
27. In Gurmit Singh Bhatia (supra) apart from the fact that there
was an injunction restraining the original defendant from transferring
the property, which is not the case here, it appears that the facts were
similar to that of Kasturi, where a complete stranger was claiming title
against parties to the suit, as, otherwise, in Kasturi (supra) a three
Judge Bench has clearly held that a subsequent purchaser claiming
through one of the parties to the suit, who is not claiming independent
title, is a necessary party in a suit for specific performance, therefore,
the decision in Gurmit Singh Bhatia does not help the cause of the
revisionist herein in view of the Three Judge Bench decision in the case
of Kasturi (supra), as, in this case the respondent nos. 3 and 4 herein
are not claiming any independent title adverse to the parties to the
suit, i.e., the defendant nos. 1 and 2 (the vendors), but are claiming
through them.
28. As already discussed, considering the form and nature of decree
which is to be passed in a suit for specific performance wherein the
transferee pendent lite is required to join in a conveyance/execution of
sale-deed, as, the vendor-defendant is no longer its owner and it is the
transferee pendente lite who shall execute the sale-deed/contract, the
respondent nos. 3 and 4 are proper parties. Presence of respondent
nos. 3 and 4 is also required in the suit for protection of their interest in
the event of any collusion between the plaintiff and defendant nos. 1
and 2. This will avoid long drawn execution proceedings and multiplicity
of litigation. Moreover, the respondent nos. 3 and 4 will be bound by
such decree and will have right of appeal against it.
29. This apart, as their claim is of being bona fide purchasers for
value without notice of Agreement-to-sell entered into between the
plaintiff and defendant nos. 1 and 2, therefore, they are entitled to
raise this plea in their defence in view of the exception contained in
section 19(b) of the Specific Relief Act 1963 as quoted and discussed
earlier, according to which, a decree for specific performance may be
enforced against either party thereto; any person claiming under him
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by a title arising subsequently to the Contract except a transferee for

value who has paid his money in good faith and without notice of the
original Contract. Thus, respondent nos. 3 and 4 are necessary parties
in the facts of this case. The Three Judge Bench in the case of Kasturi
(supra) also supports the claim of the respondent nos. 3 and 4, as
already discussed. In the case at hand the court below has allowed the
application for impleadment of respondent nos. 3 and 4 who claim that
they are bona fide purchasers. of course this court has also considered
the provisions contained in the sale-deed wherein there was no
disclosure by the vendor, i.e., defendant nos, 1 and 2 about pendency
of the suit proceedings between the plaintiff and them. This of course is
only for the purpose of impleadment proceedings. Furthermore, learned
counsel for the defendant no. 1 has opposed the application for
impleadment of defendant nos. 3 and 4 before the court below and has
also filed a suit for cancellation of the sale-deed dated 23.11.2016 all of
which clearly point out at least at this stage that there is no collusion
between the defendant nos. 1 and 2 on the one hand and defendant
nos. 3 and 4 on the other.
30. It is also not a case where a temporary injunction was operating
restraining the defendant nos. 1 and 2 from alienating the property
and, in spite of it the defendant nos. 1 and 2 sold the property to
defendant nos. 3 and 4. As already stated transfer pendent lite does
not render the sale void, but only makes it subservient to the result of
the suit. On account of the interim order dated 31.10.2019 passed in
this revision the suit proceedings have already remained stalled for
more than years.
31. In view of the law which has been discussed hereinabove and
considering the scope of a revision under section 115, C.P.C. in the
light of the decision in the case of Kesardeo Chhamaria (supra) it
cannot be said that the court below has committed any jurisdictional
error attracting clause (a) to (c) of section 115, C.P.C. nor that the
order if it was made in favour of the revisionist would not have disposed
off the proceedings for impleadment nor that the order, impugned
herein, if allowed to stand, would occasion a failure of justice or cause
irreparable injury to the party against whom it is made. As already
noticed, in the facts of the case, the presence of the transferee pendent
lite is necessary for complete and effective adjudication of the suit and
issues involved therein and the court below has exercised its discretion
in the matter, which does not require any interference under Article
115, C.P.C.
32. The fact that the sale-deed was executed on 23.11.2016
whereas the application for impleadment was filed on 5.7.2019 is not of
much relevance in the facts of the case, in view of the discussion made
hereinabove, especially as, suit proceedings have remained stalled for
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two years during pendency of the revision.

33. However, the order of the learned trial court is clarified to the
extent that the defendant nos. 3 and 4 shall not be permitted to raise
any defence inconsistent with the defence of defendant nos. 1 and 2
and only such defence would be available to them as are and would be
available to the defendant nos. 1 and 2 from whom they have derived
title and as is permissible under section 19(b) of the Act 1963. Subject
to this clarification of the order impugned, no interference is called for
in exercise of powers under section 115, C.P.C. The revision is
accordingly dismissed.
34. Any observation made in this judgment is only for the purposes
of impleadment proceedings and shall not have any bearing on the
merits of the issues involved before the Trial Court including the claim
of the respondent nos. 3 and 4 that they are bona fide purchasers.
———
† Lucknow Bench

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