GOPALA PILLAI Vs. RAGHAVAN PILLAI

JUDGEMENT

(1.) These appeals arise out of the order of the learned District Judge of Parur dated 23.1.1950 passed on CMP 130 of 1950 in OS No. 37 of 1103. AS No. 98 is by the obstructor petitioner in CMP 130 and AS No. 136, by defendant No. 7 and some other defendants.

(2.) AS No. 98 of 1950. The appellant in AS No. 98 obstructed delivery of possession of properties in execution of the decree in OS No. 37 of 1103 which was a decree for partition in a Malabar Tarwad. The obstruction related to six items. The obstruction was upheld in respect of items 2 to 6 and was disallowed in respect of the first item. A.S. No. 98 relates to the first item regarding which obstruction was disallowed and AS 136 relates to items 2 to 6 regarding which the obstruction was allowed.

(3.) The respondent in A.S. No. 98 raises a preliminary objection to the maintainability of the appeal on the ground that the appellant is a transferee of properties pendente lite that is, the transfer relied upon by him which is a mortgage executed in his favour by the 4th defendant was after the institution of the suit O.S. No. 37 of 1103 which was a suit for partition. The transferee pendente lite, it is contended, is not a representative of the party and, therefore, will not come within the operation of S. 40 of the Travancore Civil Procedure Code with the result that the order passed by the lower court must be regarded as an order passed against a stranger to the suit and that only an original suit is competent as provided in the Code. In Parameshari Din v. Ram Charan ( AIR 1937 PC 260 ) the Privy Council held that a transferee pendente lite is a representative-in-interest of the party from whom he got the transfer. The reason is obvious because a transfer after the institution of a contentious suit is not bad for all purposes; such a transferee would be disentitled to raise any claim against the decree or order that may ultimately be passed in the action. The learned counsel for the respondent relies upon Basappa Budappa v. Bhimangowda Shiddangowda ( ILR 52 Bom. 208 ) to support his position, namely, that a transferee pendente lite is not a representative. That decision when perused reveals that the non representative character of the transferee is only for the purpose of questioning the plaintiffs right to sue and that for all other purposes the transferee is a representative. Thus on the respondents own showing, where a transfer is affected by lis pendens the transferee is entitled to raise the objections and pursue the remedies which the transferor could have done. The preliminary objection is, therefore, overruled.