The Supreme Court has held that a transferee pendente lite has locus standi to file an application seeking substitution of the original defendant who filed a petition to set aside ex parte decree.
An ex-parte decree was passed against Durga Prasad in a suit filed for specific performance of contract on the basis of oral agreement. Durga Prasad filed a petition under Order IX Rule 13 and during its pendency he expired. Umasree Devi, transferee pendente lite, filed an application seeking to substitute herself in the place of original defendant. This petition was dismissed by the Trial Court. In the meanwhile Execution petition was also pending. The High Court set aside the Trial Court order.
In appeal, the counsel for decree holder, Advocate Joseph Aristotle referring to Rule 102 of Order XXI of CPC, contended that the purchaser of the suit property during pendency of litigation had no right to obstruct execution of decree passed by a competent court. The judgment in Usha Sinha v. Dina Ram was relied upon. On the other hand, Advocate Gaurav Agrawal, relied on Raj Kumar v. Sardari Lal where an application filed by a transferee pendente lite under Order IX Rule 13 of CPC was allowed.
Upholding the High Court view, the bench comprising Justice Uday Umesh Lalit and Justice Vineet Saran observed the matter directly on the point is the judgment in Raj Kumar which was the case of transferee pendente lite filing an application under Order IX Rule 13 of the Code. It said:
The scope of submissions available to an obstructionist under Order XXI Rule 97 of CPC would be restricted to consider whether he could validly or lawfully obstruct the execution of the decree. On the other hand for a defendant who had moved an application under Order IX Rule 13 of CPC, the scope of the challenge would be to consider whether there was sufficient cause which prevented him from appearing when the proceedings were taken up or whether there was serious infirmity in service of the summons upon him. The scope of challenge and available submissions at these two stages are thus distinct and different and as such the observations of this Court in Usha Sinha would not strictly govern and restrict the scope of an application on behalf of a transferee pendente lite at the stage of Order IX Rule 13 of CPC.
Recently, another bench of the Supreme Court had issued notice in Special Leave Petition in which the issue raised is whether a person who is not a party to the suit cannot move an application to set aside ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure, 1908. The bench noticed that in Ram Prakash Agarwal & Anr vs. Gopi Krishan, it was held that an application under Order IX Rule 13 CPC cannot be filed by a person who was not initially a party to the proceedings.
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