R J PAUL Vs. S N KULASEKARAN

JUDGEMENT

(1.) The petitioner/third party has filed this revision petition as against the order dated 12.2.2009 in C.M.P.No1808 of 2007 in C.M.A. No. 56 of 2007 passed by the learned VI Additional Judge, City Civil Court, Chennai in dismissing the impleading petition filed by the petitioner under Order 1 Rule 10 of Civil Procedure Code.

(2.) The learned first appellate authority, while passing orders in C.M.P. No. 1808 of 2007 in C.M.A. No. 56 of 2007 on 12.2.2009 has among other things observed that '... The said Rajeswari already has been arrayed as party in E.A. No. 84/99 and after elaborate discussion, the trial Court decided the matter. Hence what are the transactions after the disposal of the E.A through the said Rajeswari, it amounts to lis pendency. Hence the petitioner is not a necessary or a proper party to decide the issue in the CMA. Affidavit of the petitioner revealed that he purchased the property from Alagarsamy, power agent of Rajeswari in the year 2002. Hence he has not come under Order 1 Rule 10 CPC as necessary or proper party since his transaction is only lis pendency etc and resultantly dismissed the petition.

(3.) The learned Counsel for the petitioner contends that this Court in order dated 20.10.2008 in CRP(NPD) No. 3440 of 2008 has directed the first appellate Court to number the petition filed by the petitioner to implead him as party and has also directed to dispose of the said petition, after giving notice to the respondents, but the first appellate Court, number the impleading petition C.M.P. No. 1808 of 2007 and hearing the arguments in the said petition and posted the case for orders on 12.2.2009 and to the surprise of the petitioner, orders were passed in C.M.A. No. 56 of 2007 and the impleading petition was dismissed on the ground of Lis Pendency and more over the first appellate Court has not provided any opportunity to the petitioner or an obstructor to place their arguments in the main civil miscellaneous appeal and indeed the first appellate Court has not appreciated the fact that the obstructor succeeded before the Honourable Supreme Court and the petitioner and others, who are the purchasers of the property and after purchase of the property, the second respondent did not have any interest in the property and naturally, being a bonafide purchaser of a flat in the property, the petitioner is having the right to defend the case and as a matter of fact, before the executing Court as well as before the Honourable Supreme Court, the petitioner has succeeded and the Courts have held that the property was not described in the schedule and the property was not able to be identified by the Bailiff, but these aspects of the matter, have not been adverted to or appreciated by the first appellate Court in a real and proper perspective and therefore, prays for allowing the civil revision petition in the interest of justice.