HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 100 of 2010
Petitioner :- Ram Prasad Mishra
Respondent :- Virendra Kuamr & Ors.
Petitioner Counsel :- Y.S. Bohra
Hon'ble Krishna Murari,J.
Heard learned counsel for the petitioner.
Challenge has been made to the order dated 2.12.2009 passed by the lower appellate court rejecting the application under Order 41 Rule 20 C.P.C.
Facts are that O.S. No. 481 of 1987 filed by the respondent no. 1 was decreed ex-parte, which was also executed in execution case no. 4 of 1989 and accordingly a sale deed was executed. In the year 1991. The heirs of the defendant of the said suit filed another O.S. No. 37 of 1991 for declaration of the judgement and decree dated 17.9.1988 as null and void as it was passed against dead person. The suit was decreed by the trial court vide judgement and decree dated 8.1.1999. Respondent no. 1 went up in appeal. During the pendency of the appeal, Ram Pal also died and was substituted by the present respondents no. 2 to 5. The petitioner claims to have purchased the property by means of registered sale deed from the respondents no. 2 to 5. During the pendency of the appeal, vide judgement and order dated 9.10.2002 the appeal was allowed and the judgement dated 8.1.1999 was set aside. Thereafter, the petitioner moved an application under Order 41 Rule 20 read with Order I Rule 10 C.P.C.
It is contended by learned counsel for the petitioner that the court below has wrongly dismissed the application inasmuch as the petitioner after having purchased the property was an interested and necessary party to be impleaded.
I have considered the argument advanced by learned counsel for the petitioner and perused the record.
Lower appellate court has recorded a categorical finding that the appeal has been decided on merits after hearing the parties and not in collusion as has been alleged. Further, once the appeal was decided on merits there is hardly any necessity to entertain the application under Order I Rule 10 for impleadment inasmuch as the proceedings of appeal itself came to an end. In so far as the Order 41 Rule 20 is concerned, it is applicable in cases where a person who was a party to the suit from whose decree the appeal is preferred and has not been made party in the appeal and is interested in the appeal, the court can direct such a person to be impleaded.
In the present case, admittedly the petitioner was not a party in the suit and as such the Order 41 Rule 20 are not attracted.
In view of above facts and discussions, no illegality has been committed by the court below in rejecting the application.
The writ petition accordingly fails and stands dismissed.
Order Date :- 22.3.2010
nd
?Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 100 of 2010
Petitioner :- Ram Prasad Mishra
Respondent :- Virendra Kuamr & Ors.
Petitioner Counsel :- Y.S. Bohra
Hon'ble Krishna Murari,J.
Heard learned counsel for the petitioner.
Challenge has been made to the order dated 2.12.2009 passed by the lower appellate court rejecting the application under Order 41 Rule 20 C.P.C.
Facts are that O.S. No. 481 of 1987 filed by the respondent no. 1 was decreed ex-parte, which was also executed in execution case no. 4 of 1989 and accordingly a sale deed was executed. In the year 1991. The heirs of the defendant of the said suit filed another O.S. No. 37 of 1991 for declaration of the judgement and decree dated 17.9.1988 as null and void as it was passed against dead person. The suit was decreed by the trial court vide judgement and decree dated 8.1.1999. Respondent no. 1 went up in appeal. During the pendency of the appeal, Ram Pal also died and was substituted by the present respondents no. 2 to 5. The petitioner claims to have purchased the property by means of registered sale deed from the respondents no. 2 to 5. During the pendency of the appeal, vide judgement and order dated 9.10.2002 the appeal was allowed and the judgement dated 8.1.1999 was set aside. Thereafter, the petitioner moved an application under Order 41 Rule 20 read with Order I Rule 10 C.P.C.
It is contended by learned counsel for the petitioner that the court below has wrongly dismissed the application inasmuch as the petitioner after having purchased the property was an interested and necessary party to be impleaded.
I have considered the argument advanced by learned counsel for the petitioner and perused the record.
Lower appellate court has recorded a categorical finding that the appeal has been decided on merits after hearing the parties and not in collusion as has been alleged. Further, once the appeal was decided on merits there is hardly any necessity to entertain the application under Order I Rule 10 for impleadment inasmuch as the proceedings of appeal itself came to an end. In so far as the Order 41 Rule 20 is concerned, it is applicable in cases where a person who was a party to the suit from whose decree the appeal is preferred and has not been made party in the appeal and is interested in the appeal, the court can direct such a person to be impleaded.
In the present case, admittedly the petitioner was not a party in the suit and as such the Order 41 Rule 20 are not attracted.
In view of above facts and discussions, no illegality has been committed by the court below in rejecting the application.
The writ petition accordingly fails and stands dismissed.
Order Date :- 22.3.2010
nd
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