MUNIYAMMA Vs. KRISHNAPPA N.

JUDGEMENT

(1.) The decree-holder filed the present writ petition against the order dated 11.09.2013 allowing I.A. No.10 filed by the third respondent/proposed impleading applicant under Order I, Rule 10(2) r/w Sec. 151 of the Code of Civil Procedure

(2.) It is the case of the petitioner that she filed a suit in O.S. No.946/1990 for partition and separate possession of suit schedule property contending that plaintiff herself and defendants are the members of joint family and the properties are joint family properties. After contest, suit was decreed on 31.01.2003. Aggrieved by the said judgment and decree, respondents 1 and 2 filed R.A.No.84/2003 before the Civil Judge, Senior Division, Bengaluru, which came to be dismissed on 21.07.2006. The respondents 1 and 2 also filed RSA No.2531/2006 before this Court. After hearing with the parties, the Regular Second Appeal came to be dismissed on 09.08.2007 confirming the judgment and decree passed by the Courts below. Thereafter, the petitioner/decree-holder filed FDP No.3/2007 to implement the decree made in O.S. No.946/1990. During pendency of the said final decree proceedings, the third respondent/proposed impleading applicant filed an application under Order I, Rule 10(2) of the Code of Civil Procedure to implead him as third respondent contending that he has purchased 1 acre 11 guntas of land from the first respondent/Krishnappa, son of Gundamma under registered sale deed dated 29.11986. The plaintiff/petitioner, suppressing the fact of alienation made by his vendor, has filed the suit in the year 1990 and obtained decree behind his back without arraying him as a party to the said suit. He came to know about the decree only when the petitioner filed R.A.(S) 232/2007-08 before the Assistant Commissioner which was dismissed and further contended that the plaintiff tried to interfere with his possession and enjoyment of the property and, therefore, he was constrained to file O.S. No.1205/2012 which is pending adjudication before the Prl. Judge, Junior Division, Bengaluru Rural District, Bengaluru. It was further contended that the plaintiff, based on the appointment of Commissioner is trying to mark impleading applicant's property by fixing the boundaries without having any kind of preliminary decree over his property and also not making him as a party to the proceedings. Therefore, he is a proper and necessary party to the proceeding since he is in possession and enjoyment of the property bearing Sy. No. 66, situated at K. Choodhalli village, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru, measuring 1 acre 11 guntas. Therefore, he sought to allow the application.

(3.) The decree holder filed objection to the application contending that the proposed impleading applicant is not a necessary and proper party to the final decree proceedings.