Summary
In execution of a 2003 decree for specific performance, the judgment-debtor's grandson, impleaded as her legal heir in 2008 without objection, applied in 2012 under Order I Rule 10(2) CPC for deletion of his name, claiming he was not an heir under Mohammedan law and was a protected tenant of the shop. The Supreme Court upheld the concurrent rejection: having not objected under Order XXII Rule 4(2) when impleaded, nor sought revision, the impleadment order attained finality and the later application was barred by res judicata, which applies at successive stages of the same proceeding; the tenancy claim was unproved, and possession was implicit in the decree because exclusive possession lay with the contracting party. The appeal was dismissed with costs and possession ordered to be delivered within two months.
Issues
- Whether an application under Order I Rule 10(2) CPC for deletion from the array of parties, filed four years after impleadment as a legal heir under Order XXII Rule 4 without objection, was barred by res judicata.
- Whether the appellant was entitled to protection as a tenant under Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965.
- Whether transfer of possession was implicit in a decree for specific performance that did not expressly grant possession.
Provisions considered
- Order I Rule 10(2), Code of Civil Procedure, 1908The sub-rule vests a broad power to strike out or add parties at any stage, suo motu or on application. The Court held that 'at any stage' does not permit a party impleaded as a legal heir after due inquiry and without objection to reagitate the same issue later by seeking deletion, once the impleadment has attained finality. (¶¶ 43, 44, 45, 51, 54, 60)
- Order XXII Rule 4, sub-rule (2), Code of Civil Procedure, 1908Impleadment of a deceased defendant's legal representatives is governed by this rule, and sub-rule (2) allows the person so added to raise any defence appropriate to his character as legal representative. The appropriate course for the appellant was to object to his impleadment under this sub-rule at that stage and, if unsuccessful, to seek revision, not to apply under Order I Rule 10 four years later. (¶¶ 46, 47, 51, 58)
- Order XXII Rule 5, Code of Civil Procedure, 1908Where a question arises whether a person is the legal representative of a deceased party, the court must determine it. Had the appellant objected at the right stage, the court could have examined under this rule whether, under Mohammedan law, a grandson through a predeceased son was an heir and disallowed his impleadment. (¶¶ 48, 49, 59, 60)
- Section 11 (res judicata), Code of Civil Procedure, 1908Following Bhanu Kumar Jain, Satyadhyan Ghosal, S. Ramachandra Rao and the Calcutta Full Bench in Tarini Charan Bhattacharya, the Court held that res judicata applies not only between separate proceedings but between different stages of the same proceeding, and that even an erroneous decision binds the parties; the unchallenged impleadment order therefore barred the later application. (¶¶ 53, 54, 55, 56, 57)
- Section 11, Kerala Buildings (Lease and Rent Control) Act, 1965The appellant relied on the non obstante protection against eviction except under the Act. The Court held the protection unavailable because the appellant failed to establish any tenancy or exclusive possession of the suit property. (¶¶ 26, 61, 62, 63)
- Sections 22 and 28(3), read with Section 55 of the Transfer of Property Act, 1882, Specific Relief Act, 1963Applying Babu Lal v. Hazari Lal Kishori Lal as restated in Rohit Kochhar, the Court held that a separate prayer for possession is required only in an appropriate case; where exclusive possession is with the contracting party, a decree for specific performance simpliciter gives complete relief and possession is implicit in it. (¶¶ 64, 65)
Held
- Order I Rule 10(2) CPC gives the court a wide discretion to add or strike out a necessary or proper party at any stage, on application or suo motu; the test for addition is whether the person's presence is necessary for the court to effectually and completely adjudicate the questions in the suit and whether the order sought would directly affect his legal rights. (¶¶ 44, 45)
- A person impleaded as the legal heir of a deceased defendant under Order XXII Rule 4 after due inquiry, who was served, entered appearance and raised no objection, cannot years later approach the court under Order I Rule 10 to have his name deleted. His remedy was to object under Order XXII Rule 4(2) at the impleadment stage and, if overruled, to seek revision; the power to strike out parties 'at any stage' cannot be used to reagitate an objection conclusively settled at an earlier stage. (¶¶ 50, 51, 54, 60)
- The principle of res judicata applies between different stages of the same proceeding: once an order made in the course of a proceeding becomes final, it binds the parties at subsequent stages, and even an erroneous decision by a competent court binds the parties to the same litigation on the same issue. The appellant's unchallenged impleadment having attained finality, his application for deletion was barred. (¶¶ 53, 54, 55, 56, 57)
- Pankajbhai Rameshbhai Zalavadiya was distinguished: there the application under Order XXII Rule 4 was itself misconceived because the defendant had died before the suit was instituted, so Order I Rule 10 was the proper route; here the defendant died during the proceedings and Order XXII Rule 4(2) was the appropriate remedy. (¶ 58)
- The application was filed within a month of the dismissal of the legal heirs' revision against rejection of their rescission application under Section 28 of the Specific Relief Act, after the appellant had remained silent since 2008 and participated as a respondent in those proceedings without objection; its timing lent credence to the decree-holder's allegation that it was one more attempt to protract an unduly prolonged execution, and the plea that those proceedings were without the appellant's approval could not be accepted. (¶¶ 51, 52, 62)
- The tenancy claim failed because the appellant was himself a witness to the 1996 agreement to sell, which, unlike the 1976 assignment deed, contained no recital of any tenancy; he raised no tenancy objection in any proceeding until 2012; he produced no document showing tenancy or exclusive possession between the agreement and the execution application; the municipal licence in his name was issued in 2011, long after the decree and during execution; and both courts below had concurrently rejected the claim. (¶¶ 61, 62, 63)
- Where the courts below found that exclusive possession of the suit property was with the original defendant when the suit was decreed, the relief of transfer of possession is implicit in a decree for specific performance directing execution of a sale deed, and a separate prayer for possession was not required; Birma Devi v. Subhash did not assist the appellant. (¶¶ 64, 65)
Result
Appeal dismissed with costs of Rs 25,000 to be deposited by the appellant with the Legal Services Authority within two weeks; the Executing Court to ensure that vacant and peaceful possession of the suit property is handed over to respondent No. 1, with police aid if necessary, within two months; pending applications disposed of.