Summary
The Supreme Court set aside a High Court order that condoned a 586-day delay and granted leave to appeal against a specific performance decree to purchasers who bought part of the suit property pendente lite in breach of a temporary injunction. It held the delay was not shown to be for sufficient cause, and explained that while a lis pendens transferee may seek leave to appeal despite rejection of his impleadment application, the grant of leave is discretionary and was unwarranted on these facts.
Issues
- Whether the High Court was right in condoning a delay of 586 days in filing a first appeal by subsequent purchasers who were not parties to the suit.
- Whether a transferee pendente lite whose application for impleadment under Order I Rule 10 CPC was rejected, and who did not challenge that rejection, can seek leave to appeal against the final decree.
- What principles govern the grant of leave to appeal to a person who was not a party to the suit.
Provisions considered
- Section 5, Limitation Act, 1963The High Court condoned the 586-day delay on the purchasers' age, residence abroad and reliance on their vendor; the Supreme Court held no sufficient cause was shown and the purchasers had not been vigilant. (¶¶ 16, 22, 23)
- Sections 96 and 100, Code of Civil Procedure, 1908These provisions do not specify who may appeal; a non-party may appeal only with leave and only if bound by, aggrieved by or prejudicially affected by the decree. (¶¶ 25, 27, 43)
- Order I Rule 10, Code of Civil Procedure, 1908Rejection of a transferee pendente lite's impleadment application is not by itself a ground to refuse leave to appeal; the appellate court must ask whether the transferee is aggrieved or prejudicially affected and whether the decree would bind him. (¶¶ 24, 42, 55, 58)
- Order XXII Rule 10, Code of Civil Procedure, 1908A transferee pendente lite is an assignee who may, with leave, be brought on record on his own application or that of either party, but not as of right; its principles also apply under Order I Rule 10. (¶¶ 48, 52, 53, 54, 55, 58)
- Section 146, Code of Civil Procedure, 1908A lis pendens transferee from a defendant is a person claiming under the defendant and, being bound by the decree, may seek leave to appeal against it even if not brought on record. (¶¶ 18, 49, 50, 51, 52, 56)
- Section 52, Transfer of Property Act, 1882A transfer pendente lite is not void but is subservient to the rights determined in the suit, and the transferee is bound by the result; a sale in breach of an injunction may remain valid between the parties to it, subject to the decree. (¶¶ 45, 46, 47, 48, 58)
Held
- The High Court committed an egregious error in condoning the 586-day delay merely on the purchasers' advanced age, residence abroad and their vendor's failure to defend the suit; no sufficient cause was shown, the purchasers were not vigilant, and the High Court should have declined condonation. (¶¶ 22, 23)
- A person who is not a party to a suit has no right of appeal but may appeal with leave of the appellate court if bound by, aggrieved by or prejudicially affected by the decree; leave should not be given to those affected only remotely or indirectly, and should ordinarily be granted to non-parties who would be bound by the decree and precluded from attacking it elsewhere. (¶¶ 25, 27, 36, 41, 43)
- Rejection of a transferee pendente lite's application under Order I Rule 10 CPC, even if unchallenged, is not by itself a ground to refuse leave to appeal; the appellate court must examine whether the transferee is aggrieved or prejudicially affected and whether the decree would operate as res judicata against him. (¶ 42)
- A transferee pendente lite is a person claiming under the transferor-defendant within Section 146 CPC and is bound by the decree; he may therefore seek leave to appeal against it though not brought on record under Order XXII Rule 10, but the grant of leave is discretionary and to be exercised judiciously. (¶¶ 50, 51, 52, 56)
- A transferee pendente lite has no right to be brought on record; the court may permit it under Order I Rule 10 or Order XXII Rule 10 depending on the nature of the suit and the material on record. A transferee who does not seek leave does so at his own peril and remains bound by the result of the litigation. (¶¶ 55, 58)
- Purchasers who bought part of the suit property during the pendency of a specific performance suit while an injunction against alienation was in force made out no good case for leave to appeal. (¶¶ 57, 59)
Result
Appeals allowed; the High Court's order condoning delay and granting leave to appeal set aside. The subsequent purchasers left free to pursue appropriate remedies against their vendor to recover the sale consideration.