LABH INDUSTRIES Vs. NIRAJ POLYSTER FABRICATION PVT LTD

JUDGEMENT

(1.) PETITIONER , who was not a party to the suit wherefrom Regular Civil Suit No. 305 of 2004 was instituted by the respondent, is aggrieved by an order passed below Exh.69 in the Execution proceedings, rejecting the application for impleadment as a party. The said application was moved with a contention that the petitioner, being an allottee of the property in question, which was sought to be sold in Execution, had right, title and interest and that decree was alleged to be a collusive. The trial Court, after hearing the parties, rejected the application for want of jurisdiction under Order I Rule 10 of Code of Civil Procedure (for short "CPC").

(2.) LEARNED counsel for the petitioner vehemently argued and pointed out that the decree was collusive and execution thereof would prejudice the right of the petitioner. He relied upon Sections 146, 151 and Order I, Rule 10 CPC and the following decisions :

(3.) THE decision is squarely applicable to the facts of the case with an only difference that in the present case, as stated by learned counsel for the respondent on instructions of his client Shri Ramnivas Gupta, Director of respondent No.1, who is present in the Court that the property in question was already attached and therefore, remedy open to the petitioner would be under Order XXI, Rules 58 and 59 and other relevant provisions, as may be advised to the petitioner. Considering the above aspect of the matter, in the facts and circumstances of the case, it is not necessary to enter into detailed merits of the matter and in view of the above decision and Order XXI, Rules 58 and 59 of CPC, ends of justice would be served, if the application for impleadment filed by the petitioner is treated as the one under Order XXI, Rule 58 of CPC. It goes without saying that it will be opened to the petitioner to press into service all other relevant provisions under Order XXI as well; including Rule 59 thereof, seeking stay of the sale of attached property .