Briefly stated, the facts giving rise to this revision Petition under section 115, C. P. C. Are that a suit for possession of house bearing Municipal No. 7/3, Street No. 15, Bharat Nagar, Lahore, was instituted by Sh. Altaf Husain, respondent No. 1, against Muhammad Shuja, respondent No. 2, on the aver--ments that the house in dispute was originally owned by his real maternal--uncle Sh. Barkat Ali who had in the year 1960 orally gifted the house to him on account of natural love and affection and possession was also delivered to him there and then. It was also averred in the suit that the donor being issueless continued to live, with the respondent-donee and his family, in the house but later he had to file a suit in view of the misunderstanding that arose between him and Barkat All, the donor, for declaration of his title. This suit was decreed in favour of Altaf Husain, respondent No. 1 on 6-7-1960 and ever-since the said respondent was enjoying and exercising all proprietary rights over the house in question. It was asserted that the necessity of filing the suit arose - as Muhammad -Shuja, respondent No. 2, who was only a domestic servant of Barkat Ali, refused to vacate the house after Barkat Ali's death in January, 1976. This suit was contested by Muhammad Shuja, respondent No. 2, and in the written statement filed, besides raising objections as to form of the suit, locus standi, limitation and valuation, the plea on merits was that he had purchased the house from Barkat Ali, the owner, through registered sale-deed, dated 12-12-1961 for a consideration of Rs. 7,000 and that he was in possession of the house in dispute since then as an owner. Muhammad Shuja respondent also pleaded that the gift set up by Altaf Husain, plaintiff/ respondent was incomplete as possession was never delivered to him and that the decree dated 6-7-1960 obtained was not binding as Barkat Ali was neither a party nor had-appeared in Court in the said suit and that in any case he was in adverse possession of the house. It may be mentioned that although on 7-12-1977, an assurance was given to the trial Court by Muhammad Shuja respondent not to alienate the property yet he sold the house in dispute to Mst. Bashiran for ostensible price of Rs. 20,000 vide sale deed dated 26-2-1979. Mst. Bashiran, the present petitioner, claims that she was inform--ed on 20- 4-1979 that some litigation was going on in civil Court respecting the house in dispute and after receiving this information and after making enquiries, she submitted an application under Order I, rule 10, C. P. C. To the trial Court for being impleaded as a party in the suit on 24-4-1979, with the assertion that she was bona fide purchaser for value without notice of the litigation. It is noteworthy' that on the very day that this application was moved, Muhammad Shuja respondent/defendant absented himself from the proceedings and was thus ordered to be proceeded ex parte. Before that plaintiff/respondent No. 1 had already closed his affirmative evidence and Muhammad Shuja respondent had examined only two witnesses and this date was fixed for production of his remaining evidence. This. Application was resisted by Sh. Altaf Husain respondent/plaintiff and the trail' Court vide order dated 17-5-1979 rejected the application observing that the sale in favour of Mst. Bashiran was nullity being violative of the provisions of section 52 of the Transfer of Property Act and that the doctrine of lie pendens; was appli--cable with the effect that Mst. Bashiran, the petitioner, was bound by the result of the litigation. He further observed that in the circumstances, Mst. Bashiran the petitioner had no locus standi to contest the suit, on the basis of the alleged sale, the same being void .And ineffective as against the rights of the plaintiff-respondent. The learned Civil Judge after dismissing the aforesaid application proceeded to decree the suit of the plaintiff-respondent under Order IX, rule 6, C. P. C. Observing that as per order dated 24-4-1979, the res--pondent had already been ordered to be proceeded ex parte. A decree was also accordingly passed. Thereafter, Mst. Bashiran filed an appeal under section 96; C. P. C. Against the judgment and decree dated 17-5-1979 of the learned trial Court. The order passed on the application submitted under Order I, rule, 10, C. P. C. Was also assailed in the memorandum of appeal. This appeal was dismissed by the learned Additional District Judge, Lahore, vide judgment and decree dated 22-12-79. It is pertinent to note that along with the memoran--dum of appeal, neither copy of the judgment dated 17-5-79 nor application for dispensing with the same was filed. The appellate Court held that the appeal was liable to be dismissed on account of non-compliance of the provi--sions of rule 1 of Order XLI, C. P. C. An objection as to insufficiency of the court-fee stamps affixed on the memorandum of appeal was also taken by- the respondent before the learned lower appellate Court. This led to the filing of the present revision petition challenging the order dated 17-5-1969 whereby the application of the petitioner filed under Order I, rule 10, C. P. C. 'was rejected, the judgment and decree dated 17-5- 1979 and the judgment and decree dated 22-12-1979 passed by the learned Additional District Judge in appeal.
2. Muhammad Shuja, respondent No. 2, the transferor of the petitioner failed to appear and to contest these proceedings and was proceeded ex parte. Learned counsel for Sh. Altaf Hussain.
Plaintiff -respondent No. 1 raised preliminary objection as under:-
(i) Civil Revision filed on 22-1-1980 is incompetent as second appeal lies in view of the value of the subject-matter of the suit.
(ii) No appeal against the order rejecting the application was available to the petitioner as, firstly, the application was consciously made under Order I, rule 10, C. P. C. And, secondly, the right of appeal, if any,ceases with the passage of the decree in the suit. The decree having not been challenged, the same cannot be set aside in appeal filed against an interlocutory order.
Reliance was placed on Chattar Singh v. Lakhraj Singh (1), Sheikh Salim v. Hajira Bibi (2), Madhu Sudan Sen v. Kamini Kanta Sen (3) and Onkar Bhagwan v. Gamna Lakhaji & Co. (4):
(Iii) A party who has failed to challenge a decree against which appeal was otherwise available under law, stands disentitled to seek relief in exer--cise of discretionary revisional jurisdiction.
The plea that appeal against the decree in question was available to the petitioner, was based on the rule laid down in H. M. Saya & Co v. Wazir Alt Industries Ltd (5) and Sails Bala v. Nirmala Sundari (6). The other argument that where appeal is available, revisional jurisdiction is not to be invoked, was sought to be supported by the observations made in Azizul Hasan v. Ghulam Muhammad (7).
3. In answer to the preliminary objection raised and in support of the relief prayed in this revision petition, learned counsel for the petitioner addressed the arguments as follows :-
(i) The application though was moved under Order I. Rule 10, C. P. C. But wrong citation of law cannot be made a basis for refusing relief as the Court is to apply the correct law and grant the relief flowing from the facts and circumstances asserted and established on record. According to learned counsel, provisions of Order XXII, rule 10, C. P. C. Applied to the application and, as such, the relief contemplated in the aforesaid rule should have been allowed and the order passed refusing the relief was thus appealable under Order XLIIJ, rule 1 (1), C. P. C. It was added that in above view of the matter, the non-filing of a certified copy of the judgment with the Memo. Of appeal was inconsequential and the appeal filed against the decree could be treated as one against the order dated 17-5-1979 and disposed. Of one merits as such. In support of the plea that provisions of Order XXII, rule 10, C. P. C. Applied and the petitioner was to be allowed to contest the proceedings, reliance was placed on Kartar Shah v. Sanjha Khan and others AIR 1946 Lab. 263 ; Lakhshmi Narain v. Babu and another AIR 1946 Lab. 33; Hari Singh v. Khan Moin-ud-Din and others AIR 1944 Lab.
397 and Krlsto Kumar Das v. Girish Chandra Poddar. AIR 1915 Cal. 771(2).
(1) I L R 5 All. 293(2) AIR 1918 Cal. 325
(3) 1 L R 32 Cal. 1023 (4) AIR 1933 Bom. 205
(5) PLD 1969 SC tis (6) AIR 1958 SC 394
(7) 1971 SCMR 123
(ii) A transfer made during the pendency of litigation is not void ab initio or a nullity in law and that the two Courts below have misinter--preted the provisions of section 52 of the Transfer of Property Act.
(iii) Both the learned courts below misconceived the position on the question of locus standi of the petitioner. It was submitted that in case of a transfer pendente lite, the transferee bad the option either to allow the transferor to continue contesting the proceedings or if he so chooses to seek permission to join the proceedings and himself contest the light claimed in *the suit; so refusal to allow the petitioner to contest the proceedings was illegal and has caused miscarriage of justice, Reference in this connection was made to C. Wright Neville v. E. H. Freser (1), Nirmal Kumar v. Nazrul Islam (2), Nawabzada Shamsher All Khan, v. Nawabzada Major-General Sher All Khan etc. (3).
(iv) The transfer, even if was in breach of the undertaking given, was not null and void.
Reliance was placed on Beli Ram & Brothers v. Ram Lal and others (4).
On merits, learned counsel for the contesting respondent 'submitted that in the application filed, the relief sought was that the petitioner: be impleaded as a defendant in the case and that it was not a matter of mere wrong citation of law, and that the petitioner did not seek permission to continue the proceedings or to contest the proceedings from that stage onwards. It was further argued that the petitioner sought to be impleaded in the capacity of a defendant so as to contest the suit on independent grounds. It was argued that it was in this background that the trial Court came to the conclusion that under section 52 'of the Transfer of Property Act the petitioner, a transferee pendente lite, was bound by the result of the litigation and that she had no independent right to contest the proceedings. It was further submitted that there was no averment in the application that the petitioner was a pardanashin lady or that she had no notice of the litigation and that, in any case, the application was moved with the ulterior purpose of prolonging the proceedings. This . Plea was sought to be supported by pointing out that the same learned counsel represented the petitioner who was the counsel for Muhammad Shuja, the transferor, and hence in the circumstances, the petitioner cannot be allowed to urge that the relief that she wanted from the Court was merely the right to contest the proceedings by continuing the same from the stage that Muhammad Shuja, the transferor, abandoned the same.
4. From the pleas advanced and the arguments addressed by the parties, the foremost question which requires determination in this case is:- "Whether the order passed on the application dated 24-4-1979 filed under Order 1, rule 10, C. P. C.
Was appealable and, if so, whether the said order can be challenged in appeal at a time when the proceedings, in the course of which the said order was passed, had come to an end by then and a decree bad also been passed. In other words, can the Court set at naught the decree passed in the. Miscellaneous appeal filed against an order or that such a decree can only be set aside in a proper appeal filed against the decree itself."
(1) AIR 1944 Nag. 137 (2) PLD 1962 Dacca 600
(3) PLD 1976 Lab, 650(4) AIR 1925 Lab. 644(2)
With respect to the question "whether appeal was competent against the order dated 17-5-1979 passed on the application, the argument of the learned counsel for the petitioner was that wrong citation of law in the application was inconsequential and that the application was to be treated as one filed under Order XXII, rule 10, C. P. C. And the order passed as such was appeal-- able under Order XLIII, rule 1 (1), C. P. C. According to him, despite the fact that the petitioner prayed for being impleaded as a defendant, yet his submission was that the prayer made, as observed in Naga Manjhi v: Kini Mahtani (1) is really a suggestion to the Court which is to grant relief which in otherwise available under law and which flows from the facts found and proved on record. The Court, it was further argued, bad the jurisdiction to grant even a relief different from the one prayed for. No doubt, it is for the Court to decide as a matter of law, when it has decided the question of fact, what relief the plaintiff is entitled to, but that does not mean that the Court can grant relief going outside the averments made and established on record. In the instant case, the petitioner did not seek permission to carry on the proceedings from the stage the same were abandoned by the defendant-respondent ,but in fact claimed an independent right to contest the proceedings in the capacity of a defendant. Such a right admittedly was not available to the petitioner and in the circumstances, the Court was not obliged to offer the petitioner the choice to contest the proceedings by stepping into the shoes of the defendant-- transferor. It is also pertinent to recall at this stage the fact that the application to implead as a defendant was made on a date w, hen the transferor was ordered to be proceeded ex parte. This order had the effect of refusing the transferor/ defendant the right and opportunity to produce further evidence and in these circumstances, what was left to be done in the proceedings was to pronounce judgment. It will also be noted that no application was submitted by the petitioner, for setting aside the order regarding ex parte proceedings and in this set up and without seeking the set aside of the above said order, right to continue the proceedings could not be claimed. In the circumstances, the plea that the order dated 17-5-1979 is to be reckoned as one passed under Order XXII, rule 10, C. P. C., is not available to the petitioner, with the result that the order passed was not an appealable order. Even if it is assumed that the order was appealable, still the right of appeal ceased with the passing of the decree. On this question, the precedents cited - by the learned counsel for the respondent are not in point. In Chattar Singh's case, appeal against the remand order was filed at a time when decree ultimately passed had become final. In Sheikh Salim's case appeal against the order of remand, thought was filed within time, yet ;he right of appeal was held to have been lost as the final decree was later passed in the proceedings in which the party appealing bad participated and had thus taken his chance of succeeding upon the merits at the retrial. In Madhu Sudan Sen's case, it was observed that the right of appeal from interlocutory order ceases with the disposal of the suit. The real ground 'on which the view taken is founded, was expressed by Stephen J. In Balkuntha Nath Day v. Nawab Salimullah Bahadur (2):- "The basis of the decision in Madhu Sudan Sen v. Kamint Kanta Sen may be regarded -as being the consent of the appellant to the proceedings subsequent to remand, implied by his not appealing against the order of remand during those proceedings."
(1) AIR 103 Pat. 695(2) (1907) 12 C W N 590:=6 C L J 547 The basis of the decision in these cases, as noted in the cases of Sheikh Salim was that it is not open to a party which has taken the chance of succeeding upon the merits at the retrial, when the day had gone against him, to give the go-by to the proceedings which terminated in a decree against him and thereafter to prefer an appeal against the interlocutory order of remand, which was the foundation of the jurisdiction of the Court to re-hear the case. A party finding itself in such a situation must elect whether he will accept or repudiate the validity of remand order, and have once accepted the remand order, cannot turn round to challenge the same when the post- remand pro--ceedings have culminated in an adverse decree. The right of appeal . Was thus held to have been lost on account of acceptance of the remand order by joining the post-remand proceedings. Under the old Code, an appeal from an order in the nature of a preliminary decree could not be preferred or main--tained after a final decree was passed in the case, but under the present Code, a preliminary decree is a decree the within meaning of section 2 (2) and is appealable under section 97. However, two questions arise in this connection :-
(i) Where an appeal is preferred against the preliminary decree, does the passing of the final decree by the first Court affect the maintainability of the appeal.
(ii) Is an appeal against preliminary decree preferable after the final decree has been passed in the suit.
On the first question, the High Courts of the sub-continent held that passing of a final decree subsequent to the institution of the appeal will not affect the maintainability of the appeal.
Reference in this connection may be made to Basawant Mallappa Neje v. Kallappa Virbhadrappa Kottwale (1) and Gurmukh Singh and others v. Malik Ship Ram and others (2). Chitaley in his commen--taries on Civil Procedure Code, 7th Edition, Volume I, page 1258 has noted that on the second question, there is conflict of opinion. The view taken by High Court of Madras, Allahabad, Patna and Peshawar was that an appeal can be preferred against the preliminary decree even after the final decree has been passed, as the final decree is dependent on the preliminary decree and if the latter is set aside in appeal, the former falls with it. The Calcutta High ,Court expressed four different views but the conflict in views was finally set at rest in Talib Ali and another v. Abdul Aziz and others (3). The questions referred to the Full Bench were :-
(i) whether an appeal from a preliminary decree is incompetent if a final decree is made before the appeal` is presented, and (ii), whether it is necessary for a party aggrieved by a preliminary decree to appeal both from that decree and the final decree in order to maintain his appeal against the preliminary decree, although the final decree apart from its being based on the preliminary decree may be otherwise correct.
Both these questions were answered in the negative. The following observa--tion being pertinent to the question in hand may be noted:- "In my judgment it is altogether unreasonable to treat a preliminary decree under the Code, 1908, as a mere interlocutory order whose force is spent when the suit is disposed of."
(1) AIR 1938 Bom. 222 ' (2) AIR 1935 Lab. 482
(3) AIR 1929 Gal. 689 In Basawant Mallappa Neje's case, the same view was taken as it was held that an appeal from a preliminary decree is not incompetent even though pending the appeal the lower Court has passed final decree and toe appellant has not asked for stay of proceedings after institution of his.
Appeal or has not `filed an appeal against the final decree. It was observed that if the preliminary decree is set aside, the final decree is superseded whether the appeal is brought before or after the passing of the final decree and that the Court when setting aside or varying the preliminary decree, can and should give directions for set--ting aside or varying the final decree. This enunciation of law does not solve the problem as in this case we are dealing with an order. A `decree' is defined in section 2 (2) and order is defined in section 2(14) of the Code of Civil Procedure, and the question whether a particular order is or is not a decree is some times difficult to decide. The difficulty is not in laying down the test but in applying it to a particular case. A useful test is whether the order conclusively determines the rights of the parties with regard to any matter in controversy in the suit, and a determination of rights, howsoever conclusive it may be, of the parties will not constitute a decree unless these rights were subject-matter of controversy in suit.
Again interlocutory orders on matters of procedure unless they decide substantive rights of parties are not decrees. See Bharat National Bank v. Bhagwan Singh (1). Moreover "rights" mean substantive rights in regard to subject-matter of the suit and the "parties" mean parties arrayed on the one side as plaintiff and on the other as defendant. Therefore, an order on an application by a third person to be impleaded as the legal representative of a deceased plaintiff in the suit is not an order on the rights of the parties and hence is not a decree. Ruckmant Ammal v. Veerasami Alyangar and another (2). The principle that emerge from these precedents is that if the order passed is in the nature of a pre--liminary decree or can be equated in its legal effect with a preliminary decree, then the passing of the final decree would not affect the maintainability of the appeal. In support of the view that I have taken, reference be made to the case of Ashig Muhammad Khan Mazari and 3 others v. Chairman, Federa Land Commission etc. (3) wherein relying on Ramdltta v. Maru and another (4 and Gurumukh Singh and others v. Malik Shiv Ram and others, it was observed that the case of preliminary objection, decided in that case, could without any fear of contradiction be equated with the passing of a preliminary decree in a suit. It, therefore, follows that those orders which cannot be equated, in effect, with a preliminary decree, cease to be appealable indepen--dently as once a decree is passed, all previous orders in the case, whether good or bad, merge into the decree or become ancillary to it. It would be anomalous to permit an appeal on the order alone leaving the decree untouched as even if the order is set aside, the decree would not stand. Superseded. The decree once passed, can only be set aside by means of an appeal against it and the provisions permitting appeals from certain orders were not meant to provide a short and inexpensive cut to a person against whom a decree is outstanding to have it set aside by means of appealing against some order leading up to the decree. In support of what has been said above, reference may be made to Onkar Bhagwan's case (5).
(1) AIR 1943 Lab. 140 (2) AIR 1924 Mad. 813
(3) PLD 1977 Lah. 4611 (4) AIR 1926 Lah. 534
(5) AIR 1935 Lah. 482(6) AIR 1,933 Bom. 205
5. The order passed on the application moved by the petitioner could well be and in fact was challenged in appeal which was available against the final decree in view of the rule laid down by Supreme Court of Pakistan in H. M. Saya & Co. v. Wazir All Industries Ltd. A purchaser pendente lite was held by the Supreme Court of India also as having the right to file an appeal as well as the right to continue an appeal which may have been filed by the person under whom the purchaser applicant claims his title, right or interest. In. An appeal competently filed, the question of refusal to join or to continue the proceedings can well be agitated. The order allowing or refusing the permission to a purchaser pendente lite to continue the proceed--ings cannot be equated with a preliminary decree as by such an order, the Court does not determine the rights of the parties with regard to all or any of the matters in controversy in the suit. The petitioner, therefore, cannot be allowed to challenge the order without assailing the decree itself as on acceptance of such an appeal, the decree cannot be touched, superseded or sets aside.
6. In view of my findings on the aforesaid question, the other questions argued need not be gone into. I may also add that the petitioner cannot invoke revisional jurisdiction on the ground of alleged miscarriage of justice as he challenged the decree also by filing an incompetent appeal.
Even otherwise, the petitioner does not appear to be entitled to the exercise of discretionary revisional jurisdiction.
7. The upshot of the above discussion is that this revision petition fails and is, hereby, dismissed with costs.