P L D 1954 Dacca 158 (PLP)

(b) Civil Procedure Code (h of 1908), O. 1, r. 10‑Suit for specific performance‑Subsequent transferee f or value interested party. It cannot be said that in a suit for specific performance of a contract for sale or lease a subsequent transferee is not an interested party ; for, a subsequent transferee for value, who has paid his money in good faith without notice of the original contract, is entitled to hold his title against the plaintiff in a suit for specific performance of the contract. Kafluddin Khondkar, for Petitioner. Jane Alam, for Opposite‑Party No.‑l IBRAHIM, J.‑

The petitioner in this Rule is the fifth "de fendant in a suit for specific performance of a contract for lease. The contract was between the plaintiff Abed Ali and the original defendant No. 1 Syed Abdul Jabbar. He filed a written statement denying the contract. On his death there after, his heirs, who were substituted, entered into a compro mise with the plaintiff, admitting the latter's claim. The learned Munsif refused to record the compromise striking out the petitioner who had taken lease from the original defendant No. 1 after the institution of this suit, his view being that the petitioner was a necessary party to the suit. On appeal the learned Subordinate judge agreed that the compromise should not be recorded but not on the ground that the petitioner was a necessary party for a proper decision of the suit. He held that the petitioner was not a necessary party to the suit but that the compromise could not be recorded inasmuch as the written statement filed by the original defendant No. 1 was not disowned by the substituted defendants ; and that though it was open to them to file a revised written statement, they were not entitled to enter into a compromise in derogation of the written statement filed by the original defendant No.

1. The petitioner thereafter obtained this Rule which is directed against the decision of the learned Subordinate Judge that he is not a necessary patty to the suit and his name should be struck out as prayed for by the plaintiff. Mr. Kafiluddin Khondkar appearing for the petitioner has contended that the appeal before the learned Subordinate judge was incompetent inasmuch as no appeal lies from an order under Rule 10, Order 1 of the Code of Civil Procedure. He has referred to Abdul Hague v. Muhammad Yahya Khan and others (A I R 1918 Pat. 488) in support of his contention. There can be no quarrel about the proposition that no appeal lies from an order under Rule 10, Order I ; but the appeal before the learned Subordinate Judge was under Order XLIII, Rule 1, clause (m) of the Code from an order refusing to record a compromise. It cannot be said that in a suit for specific performance of a contract for sale or lease a sub sequent transferee is not an interested party; for, a subsequent transferee for value, who has paid his money in good faith without notice of the original contract, is entitled to hold his title against the plaintiff in a suit for specific performance of the contract. But the objection in the case is that the lease in favour of the petitioner is hit by section 52 of the Transfer of Property Act, it having been executed during the pendency of a contentious suit: Where a transfer is hit by section 52 of the Transfer of Property Act, the transferee is not entitled to hold his title against a party to the suit sought to be affected by the transfer. That appears clearly from these words in section 52 of the Transfer of Property Act, namely ; ....the property cannot be transferred or other wise, dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be there under ." As his lease is hit by this section, the petitioner has no defence to make against the plaintiff. It is not disputed before me that a suit for specific performance of a contract for a lease amounts to a suit in which the right to immovable property is directly and specifically in question. There are decisions, such as Johar Mull Bhatra and others v. Jatindra Nath Bose and others (34 C L J 79), where it has been held that a suit for specific performance of a contract operated as lis pendens. The Rule accordingly fails and is discharged. A. H. Rule discharged.