Allowed

Laxmidhar Sahoo v. Ashok Kumar Baral

Orissa HC12 Dec 2022CMP/709/2020

Case brief

AI extract

What is this about?

The High Court of Orissa allowed a Civil Miscellaneous Petition, setting aside an order rejecting the petitioner's application to be impleaded as a party under Order IX Rule 13 CPC. The Court held that a lis pendens purchaser must be added as a party despite the prior decision in Anil Kumar Singh, distinguishing the facts based on the purchaser's interest.

What did the court decide?

Impugned order setting aside impleadment application is set aside; Petitioner directed to be impleaded as party in proceeding under Order IX Rule 13 CPC in IA No.243 of 2014.

Laxmidhar Sahoo Vs Ashok Kumar Baral — Partition | Orissa HC (2022)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No. 709 of 2020

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Laxmidhar Sahoo …. Petitioner Mr.Ajodhya Ranjan Dash, Advocate

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-versus-

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Ashok Kumar Baral and others …. Opp. Parties Ms. A. Barik, Advocate (Opposite Party No.1)

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CORAM:

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JUSTICE K.R. MOHAPATRA

Order No.

ORDER 12.12.2022

This matter is taken up through Hybrid mode.

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Petitioner in this CMP seeks to assail the order dated 17^th October, 2019 (Annexure-6) passed by learned Senior Civil Judge Bhubaneswar in IA No.243 of 2014 [arising out of TS No.38 of 1989 (FD)], whereby the application filed by the Petitioner to be impleaded as party to the proceeding under Order 1 Rule 10 CPC, has been rejected.

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Mr. Dash, learned counsel for the Petitioner submits that TS No.38 of 1989 was filed for partition and the suit was preliminarily decreed ex-parte against the Defendants. Thereafter, final decree proceeding was initiated at the instance of the Defendant No.2. During pendency of the final decree proceeding, the Plaintiff and Defendant No.2 through their Power of Attorney, namely, Mr. Bijay Kumar Samal sold a part of their share to the present Petitioner. On his death, his LRs, namely, Opposite Party Nos.10 to 12 were brought on record.

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Thus, the Petitioner filed an application under order XX Rule-10 CPC read with Order 1 Rule 10 CPC to be impleaded as a party to the final decree proceeding, which was allowed vide order dated 11^th September, 2017. After being impleaded as party to the final decree proceeding, the Petitioner filed an application under Order 1 Rule 10 CPC to be impleaded as a party in the proceeding under Order IX Rule 13 CPC (IA No.243 of 2014) filed by the LRs of Defendant No.1 for setting aside the ex-parte decree in TS No.38 of 1989. The said application was rejected relying upon the ratio decided in the case of Anil Kumar Singh vs Shivnath Mishra and Gadasa Guru, reported in (1995) 3 SCC 147 holding that the Petitioner is not a necessary party and his involvement will not assist the Court in fare adjudication of the case. It is submitted by Mr. Dash, learned counsel that since the similar application made by the Petitioner in the final decree proceeding has been allowed and he being a lis pendens purchaser, has accrued a valuable right, he should be allowed to contest the application under Order IX Rule 13 CPC.

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Mr. Dash, learned counsel for the Petitioner, in course of argument, placed reliance on the case law in the case of Raj Kumar Vs. Sardari Lal and others , reported in (2004) 2 SCC 601 in which, the Hon’ble Supreme Court taking note of the provisions under Order XXI Rule 21 CPC read with Section 146 CPC, allowed the lis pendens purchaser to file an application under Order IX Rule 13 CPC. It is, therefore held that when a lis pendens purchaser can maintain an independent application under Order IX Rule 13 CPC, there should not be any impediment in allowing him to be impleded as a party to such

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proceeding although transfer in question took place after the preliminary decree is passed. He, therefore, prays for setting aside the impugned order and to implead the present Petitioner in the proceeding under Order IX Rule 13 CPC in IA No.243 of 2014.

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During pendency of the CMP, Opposite Party No.2 expired on 28^th March, 2022, but he is survived by the Opposite Party No.1, who is his son. Thus, Mr. Dash, learned counsel for the Petitioner submits that substitution of Opposite Party No.2 is not necessary.

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Miss Barik, learned counsel for Opposite Party No.1 submits that the Petitioner is neither a necessary nor proper party to the proceeding under Order IX Rule 13 CPC. Issue involved in the proceeding under Order IX Rule 13 CPC is to test the legality in setting the Defendants ex-parte . Thus, presence of the Petitioner in deciding such an issue is not necessary. She further submits that in absence of the Petitioner, petition under Order IX Rule 13 CPC can be effectively and finally decided. As such, learned trial Court has committed no error in dismissing the application under Order 1 Rule 10 CPC.

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Taking into consideration the rival contentions of the parties, the only question that arises for consideration is that whether a lis pendens purchaser is required to be added as a party to the proceeding under Order IX Rule 13 CPC? In the instant case, admittedly the Petitioner purchased the suit property vide RSD No.9704 dated 25^th March, 2009, i.e., after the preliminary decree was passed. During pendency of the final

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decree proceeding, the Plaintiff as well as Defendant No.2 sold the property to the Petitioner through their Power of Attorney. In the interregnum, the Defendant No.2, one of the vendors of the Petitioner has died. Although Defendant No.2 has been substituted by his legal heirs, but there is every likelihood that they may not protect the interest of the Petitioner. Further, the Petitioner has already been impleaded as a party to the final decree proceeding.

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A final decree proceeding is being drawn on the basis of the preliminary decree. The preliminary decree is made determining the share of the parties to the suit. Hon’ble Supreme Court in the case of Raj Kumar (supra) allowed the lis pendens purchaser to file an independent application under Order IX Rule 13 CPC. If the lis pendens purchaser is permitted to file an independent application under Order IX Rule 13 CPC there is no reason as to why he should be denied to be a party in the proceeding under Order IX Rule 13 CPC in the instant case. The ratio decided in Anil Kumar Singh (supra) is not applicable to the case at hand as in the instant case the Petitioner has an interest in the joint family property as a lis pendens purchaser. Considering the same, he has been impleaded as a party to the final decree proceeding. Thus, the submission made by Miss Barik, learned counsel for Opposite Party No.1 is not sustainable and for that reason the impugned order under Annexure-6 is liable to be set aside.

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In view of the above, this Court has no hesitation to set aside the impugned order under Annexure-6 and it does so directing the learned trial Court to implead the Petitioner as a

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party to the proceeding under Order IX Rule 13 CPC in IA No.243 of 2014.

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With the observation and direction, as aforesaid, the CMP is allowed to be disposed of.

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Interim order dated 9^th November, 2022 passed in IA No.691 of 2020 stands vacated.

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Issue urgent certified copy of the order on proper application.

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(K.R. Mohapatra)

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Judge

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s.s.satapathy

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Laxmidhar Sahoo v. Ashok Kumar Baral

Case brief

What is this about?

What did the court decide?

Laxmidhar Sahoo v. Ashok Kumar Baral

Case brief

What is this about?

What did the court decide?

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