SEENIVASANversusPETER JEBARAJ & ANR.

                         [2008] 5 S.C.R. 1185


                            SEENIVASAN                              A
                                  v.
                     PETER JEBARAJ & ANR.
                   (Civil Appeal No. 854 of 2001)
                           APRIL 4, 2008
                                                                    B
        [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

          Code of Civil Procedure, 1908:
          0. 1 R. 10 - Person added as defendant - Date of effect
     of impleadment - Held: Is the date of service of summons -     c
     Transfer of Property Act- s.52- Limitation Act, 1963 - s.21.
          The original owner of the suit property entered into
     sale agreement with one 'A' who was father of the
     appellant. However, he sold the property to 'SA'. 'A' filed
                                                                 D
     suit against the original owner for specific performance
t-   of sale. An application was filed to implead 'SA' as
     defendant.
          'SA' sold the property to respondent's father under
     two sale deeds. On 16.4.1984, an application for impleading E
     'SA' was allowed. The plaint was amended showing 'SA'
     as defendant. Thereafter, an ex-parte decree was passed.
            The respondent's father sold the property to the
     respondents. Executing Court executed sale deed in
     favour of 'A'. 'SA' filed application for condoning the delay F
     for setting aside ex parte decree which was dismissed.
     Appeal and revision thereagainst were also dismissed.
     On 12.12.1994, respondents filed suit for declaration of
     title and injunction which was decrel'!d. High Court upheld
     the same on the ground that Order 1 Rule 10 CPC is G
     applicable to proceeding of this nature and that 'SA' had
     got absolute title when sale was made by her and therefore
~
     subsequent transferees too had absolute title and that on
     the date when the ex-parte decree was passed, 'SA' did
                                   1185                            H
    1186       SUPREME COURT REPORTS               [2008] 5 S.C.R.


A   not have any right to the property.
       In appeal to this Court, appellant contended that
  once the application for bringing 'SA' as party was allowed,
  the same became operative from the date of its filing and
  therefore, the sale by 'SA' to respondent 2 and 3 did not
B convey any title; and that the effect of s.52 of the Transfer
  of Property Act 1882, has also to be noted.
           Dismissing the appeal, the Court
       HELD : 1.1. The crucial expression in Order 1 Rule
C 10 CPC is "only on the service of the summons". It is
  abundantly clear that if any defendant is impleaded
  subsequently proceedings as against him shall be
  deemed to have begun only from the date of service of
  summons. Same of course, is subject to the provisions
D of s.22 of the Indian Limitation Act, 1877. [Para 6]
  [1189-E-F]                                                         -1
       1.2. In sub-rule (5), words "Indian Limitation Act,
  1877" are substituted by Legislature as "Limitation Act,
E 1963" and "Section 22" by "Section 21 ". Said provision
  does not in any way dilute the significance of the
  expression "shall be deemed to have begun only on the
  service of the summons". Order 1, Rule 10(5) statutorily
  specifies the date on which the impleadment takes effect.
  Order 1 Rule 10(5) is a deeming provision. [Paras 7, 9]
F [1189-G; 1191-A-B]
         Durga Prasad & Anr. v. Deep Chand & Ors. AIR 1954
    SC 75 and Ramprasad Dagaduram v. Vijaykumar Motila/
    Hirakhanwala & Ors. 1967 (2) SCJ 805 - relied on.
G       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    854 of 2001.

         From the Judgment and Order dated 3. ·1.2000 of the High
    Court of Judicature at Madras in S.A. No. 1805/1999

H          V. Prabhakar, Ramjee Prasad and Revathy Raghavan for
             SEENIVASAN v. PETER JEBARAJ & ANR.                    1187
                    [DR. ARIJIT PASAYAT, J.]
-\
      the Appellant.                                                       A
           Shashi M. Kapila and Rishi Malhotra for the Respondents.
           The Judgment of the Court was delivered by
           .DR. ARIJIT PASAYAT, J. 1, Challenge in this appeal is to .
      the judgment of a learned Single Judge of the Madras High            B
      Court in Second Appeal filed by the respondent No.1.
           2. Background facts in a nutshell are as follows:

              On 12.2.1978 an agreement for sale was entered into
       between one Shahul Hameed and Arunchalam (father of the             c
       appellant). On 26.5.1978 Shahul Hameed sold the property to
       one Saraswathi Ammal who was not a party to the proceedings.
       On 3.2.1981 aforesaid Arunachalam instituted suit No.OS 528
       of .1981 against Shahul Hameed for specific performance.
       Initially Saraswathi Ammal was not a party. On 13.7.1983 an         D
       application (I.A. No. 830 of 1983) was filed to implead
 r     Saraswathi Ammal as defendant. On 28.1.1984 Saraswathi
       Am ma I sold the property to Anna Pushpam Ammal and Lalitha
       Ammal under two sale deeds. I.A. No. 830 of 1983 to implead
       Saraswathi Ammal was allowed on 16.4. i 984. On 17 .9.1984          E
       plaint was amended showing Saraswathi Am ma I as defendant.
       An ex-parte decree was passed in OS No: 528 of 1981 on
       11.7.1985. On 30.12.1985 Anna Pushpam Ammal sold the
       property to the respondent No.1. On 8.8.1986 Lalitha Ammal
       sold the property to respondent No.2. On 10.11.1987 Execution
       Petition was filed to execute the decree in the aforesaid OS
                                                                           F
 i     No. 528 of 1981. On 11.1.1988, the Executing Court executed
       sale deed in favour of Arunachalam. On 23.3.1988 I.A. No. 640
       of 1988 was filed by Saraswathi Am ma I to condone the delay in
       seeking to set aside ex pa rte decree in the suit. On 21. 7 .1989
       the said I.A. was dismissed as not pressed. On 29.7.1989 a          G
       second application was filed i.e. I.A. 987 of 1989 to set aside
       the ex parte decree. On 20.6.1990, the same was dismissed
       on merit. On 12.10.1992 Appeal (CMA 3 of 1991) filed by
       Saraswathi Ammal was dismissed. On 7.11.1994 Revision
     ; Petition i.e. CRP No. 3139 of 1994 was dismissed. On                H
    1188         SUPREME COURT REPORTS                 (2008] 5 S.C.R.


A   12.1.2.1994 the suit O.S. No. 673 of 1994 was filed by the
    respondents for declaration of title and injunction. The same
    was decreed on 26.4.1996. An appeal filed by the appellant
    (AS 23 of 1999) was allowed on 24.9.1999. By the impugned
    judgment dated 3.1.2000 second appeal filed by the
B • respondents was allowed. The High Court held that to a
    proceeding of this nature Order I Rule 10 (4&5) applied and
    held that Saraswathi Am ma I had got absolute title when sale to
    Anna Pushpam Ammal was made to plaintiffs' vendors under
    Exhibit A2 and A7 who in terms sold the same to the plaintiffs.
C The subsequent transferees Anna Pushpam Ammal and Lalitha
    Ammal are not parties to the suit and the title vests with them
    and the plaintiffs also got absolute title. On the date when the
    ex-parte decree was passed, Saraswathi Ammal did not have
    any right to the property. It was also held that Exh.A2 &A7 were
    not hit by the principles of lis pendens and Saraswathi Ammal
D was also able to convey the title to the vendors of the plaintiffs.
          3. Learned counsel for the appellant submitted that once
    the application for bringing Saraswathi Ammal as party was
    allowed, the same became operative from the date of its filing
E   and therefore, the sale by Saraswathi Ammal to Anna Pushpam
    Ammal and Lalitha Ammal under Ex. A2 to A7 did not convey
    any title. It was also submitted that the effect of Section 52 of
    the Transfer of Property Act 1882, (in short the 'Act') has also to
    be noted.
F       4. Learned counsel for the respondents on the other hand
    supported the order of the High Court.
          5. The Order 1 Rule 10 (so far as relevant) and Section 52
    of the Act read as follows:
G          Order 1 Rule 10(4)/(5)
           (4)   Where defendant added, plaint to be amended-
                 When a defendant is added, the plaint shall, unless
                 court otherwise directs, be amended in such manner
                 as may be necessary and amended copies of the
H                summons and of the plaint shall be served on the
      SEENIVASAN v. PETER JEBARAJ & ANR.                        1189
             [DR. ARIJIT PASAYAT, J.]

           new defendant and if the court thinks fit, on the original   A
           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              8
           summons."
     Section 52 of the Act
     "Sec.52. During the pendency in any court having authority
     within the limits of India excluding the State of Jammu and C
     Kashmir or established beyond such limits by the central
     Government, of any suit or proceedings which is not
     collusive and in which any right of immovable property is
     directly and specifically in question, the pro~erty cannot
     be transferred or otherwise dealt with by any party to the D
     suit or proceeding so as to affect the rights of any other
     party thereto under any decree or orders which may be
     made therein except under the authority of the court and
     on such terms as it may impose."
      6. The crucial expression in Order 1 Rule 10 is "only on the      E
service of the summons". It is abundantly clear that if any
defendant is impleaded subsequently proceedings as against
him shall be deemed to have begun only from the date of
services of summons. Same of course is subject to the provisions
of Section 22 of the Indian Limitation Act, 1877 (in short              F
'Limitation Act').
     7. In sub-rule (5), words "Indian Limitation Act, 1877" are
substituted by Legislature as "Limitation Act, 1963" and "Section
22" by "Section 21". Said provision does not in any way dilute          G
the significance of the expression "shall be deemed to have
begun only on the service of the summons".
    8. In Ourga Prasad & Anr v. Deep Chand & Ors. (AIR
1954 SC 75) it was held as follows:
                                                                        H
    1190        SUPREME COURT REPORTS                     [2008] 5 S.C.R.


A          "First, we reach the position that the title to the property
           has validly passed from the vendor and the resides in the
           subsequent transferee. The sale to him is not void but only
           voidable at the option of the earlier "contractor". As the
           title no longer rests in the vendor it would be illogical from
8          a convincing point of view to compel him to convey to the
           plaintiff unless steps are taken to re vest the title in him
           either by cancellation of the subsequent sale or by
           reconveyance from the subsequent purchaser to him. We
           do not know of any case in which a reconveyance to the
c          vendor was ordered but Sulaiman C.J. adopted the other
           course in Kali Charan v. Janak Dea (A.l.R. 1932 All. 694.).
           He directed cancellation of the subsequent sale and
           conveyance to the plaintiff by the vendor in accordance
           with the contract of sale of which the plaintiff sought specific
           performance. But though this sounds logical the objection
D
           to it is that it might bring in its train complication between
           the vendor and the subsequent purchaser. There may be
           covenants in the deed between them which it would be
           inequitable to disturb by cancellation of their deed.
           Accordingly, we do not think that is a desirable solution.
E
                                       )()()()()()(


           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
F          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. This was the course
           followed by the Calcutta High Court in Kafiladdin v.
G          Samiraddin (A.1.R. 1931 Cal. 67.), and appears to be the
           English practice. See Fry on Specific Performance, 6th
           edition, page 90, paragraph 207; also Potter v. Sanders
           (67 E.R. 1057.). We direct accordingly."
           9. Above being the position, the High Court was right in its
H
        SEENIVASAN v. PETER JEBARAJ & ANR.                  1191
               [DR. ARIJIT PASAYAT, J.]

view. Though strong reliance was placed on a decision of this       A
Court in Ramprasad Dagaduram v. Vijaykumar Motilal
Hirakhanwala & Ors. [1967 (2) SCJ 805]. the same has no
application because that related to a case of plaintiff. In the
instant case, it relates to the defendant and Order 1, Rule 10(5)
statutorily specifies the date on which the impleadment takes       B
effect. Order 1 Rule 10(5) is a deeming provision.

      10. That being so, the High Court's impugned judgment
suffers from no infirmity to warrant interference.

       11. Appeal is dismissed with no order as to costs.           c
D.G.                                        Appeal dismissed.