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Raj Singh Vs. Ram Nivas and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1002 of 1973
Judge
Reported inAIR1977All104
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10; Specific Relief Act, 1963 - Sections 19
AppellantRaj Singh
RespondentRam Nivas and anr.
Appellant AdvocateA.D. Prabhakar, Adv.
Respondent AdvocateV. Sahai and ;B. Dayal, Advs.
DispositionRevision dismissed
Excerpt:
.....is a bona fide transferee for value without notice, and because the plaintiff bad alleged that the defendant no. he also took the view that as the transfer was during the pendency of the suit, the suit could not be held to be bad for joinder of the defendant no......was a necessary party. he also took the view that as the transfer was during the pendency of the suit, the suit could not be held to be bad for joinder of the defendant no. 74. it is contended by the learned counsel that he is not a necessary party in view of section 19 of the specific relief act because he is a bona fide transferee for value without notice. this question has, to be decided on evidence in the suit itself and not in an application under order 1, rule 10, civil p.c.5. order 1, rule 10 (2) provides :--'the court may at any stage of the proceedings 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 party improperly joined, whether as plaintiff or defendant, be struck out, and that.....
Judgment:
ORDER

Hari Swarup, J.

1. This revision has been filed against an order of the trial court refusing to strike out the name of the defendant No. 7 from the array of parties.

2. The suit has been filed by the plaintiff for specific performance of a contract of sale of an agricultural land. The contract was, according to the plaintiff, between him and Smt. Onkari. Smt. Onkari had agreed to transfer her one-third share in the agricultural land and had taken an earnest money also in respect of the same. Defendant Mo. 7 obtained a decree against Smt. Onkari and in execution of that decree, during the pendency of the present suit, purchased her share in this very property at an auction-sale. As the defendant No. 7 acquired title in, respect of this property, the plaintiff applied for impleading him as a defendant and he was impleaded as defendant No. 7. Defendant No. 7 then applied for striking out his name.

3. The court below has held that in view of Section 19 of the Specific Relief Act, the decree if passed will be enforceable even against the transferee unless he is a bona fide transferee for value without notice, and because the plaintiff bad alleged that the defendant No. 7 was not a bona fide transferee for value without notice, he was a necessary party. He also took the view that as the transfer was during the pendency of the suit, the suit could not be held to be bad for joinder of the defendant No. 7

4. It is contended by the learned counsel that he is not a necessary party in view of Section 19 of the Specific Relief Act because he is a bona fide transferee for value without notice. This question has, to be decided on evidence in the suit itself and not in an application under Order 1, Rule 10, Civil P.C.

5. Order 1, Rule 10 (2) provides :--

'The Court may at any stage of the proceedings 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 party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, 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, be added.'

This provision-is meant to give to every person an opportunity of being heard whose rights might be affected by the ultimate decree. It also provides for striking out of the names of persons whose interest or rights may not be affected. If the court passes the decree for specific performance of contract and the sale-deed is to be executed it will necessarily cast a cloud on the interest of defendant No. 7. It cannot, therefore, be said that he was improperly impleaded as party in the case; he was a proper party. The court, below cannot for this reason be held to have acted either illegally or with material irregularity in the exercise of its jurisdiction in not striking out the name of defendant No. 7.

6. The revision is accordingly dismissed. Costs on parties.


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