K. RAJU Vs. KUTHALINGAM

JUDGEMENT

(1.) This Civil Revision Petition has been filed by the petitioner/ 3rd party against the order of the trial Court in dismissing the petition filed by him under Order 1 Rule 10(2) of the Code of Civil Procedure to implead himself as one of the defendants in O.S. No.428 of 2010.

(2.) The suit in O.S.No.428 of 2010 has been filed by the respondents/plaintiffs against Rl and R2 who are respectively his brother and sister-in-law seeking for partition in the suit scheduled properties and to give half share. The suit for partition was filed on 20/12/2010. During the pendency of the suit, property was sold on 23/10/2013. The second respondent/first defendant and the legal heirs have sold the suit scheduled first property to the revision petitioner by registered sale deed dtd. 21/10/2013. The revision petitioner who is the purchaser pendente lite had filed the petition under Order 1 Rule 10(2) of the Code of Civil Procedure seeking to implead him as necessary party in the suit. The application had been filed on 6/1/2014, when the case was listed for trial, the respondents/plaintiff had filed the objection in IA No. 47 of 2014 . The Trial Court holding that the petitioner being a purchaser pendente lite is not necessary party had dismissed the petition by order dtd. 10/7/2014 against which the revision has been filed.

(3.) The learned counsel for the petitioner would submit that the petitioner without aware of the pendency of the case had purchased the property after paying due consideration to the first defendant and his legal heirs. The petitioner herein being a subsequent purchaser of the property has right over the suit property and no effective decree can be passed in his absence and he is a necessary party to the litigation under Order 1 Rule 10(2) of the Code of Civil Procedure., whereas the Trial Court without taking into consideration the right of the petitioner had dismissed the application. In support of his contention the learned counsel for the petitioner relied on the judgment of the Hon'ble Apex Court in Thomson Press India Ltd.vs. Nanak Builders and Investors Private Ltd and others reported in 2013 5 SCC 397. He would further submit that the petitioner was not aware of the pending litigation before he purchased the property and the transfer of the suit property pendente lite is not void abinito and the petitioner having purchased the property from the first defendant takes the bargain subject to the right of the first defendant in the suit. The Trial Court had rendered an erroneous finding that transfer pendente lite is void as per the Sec. 52 of the Transfer of the Property Act. He would also rely on the decision of the decision of this Court in the case of Devaki Thiyagarajan .vs. Ahamed and others reported in 2015 (4) CTC 293 and seek to set aside the finding.