A third-party seeking relief under Order XXXIX, Rule 4 of the Civil Procedure Code must be a party to the suit and cannot claim right through the defendants without being willing to become a party to the suit.

ORAL ORDER:- Heard the counsel for the parties. Perused the relevant pleadings.

2. A preliminary objection is taken on behalf of the plaintiffs that the applicant, who is a third party, cannot be permitted to seek relief “simplicitor” of vacating the ad-interim order passed by this Court on 17-10-2006 without a formal prayer for being joined as a party-defendant to the suit.

3. The applicant-third party, however, contends that the applicant is entitled for asking the relief simplicitor of vacating the order dated 17-10-2006 without being joined as a party to the suit. According to the applicant, this application has been filed under Order XXXIX, Rule 4 of the Civil Procedure Code, which permits even a third-party to apply for vacating an interim order passed by the Court.

4. To my mind, going by the language of Order XXXIX, Rule 4, the plaintiffs are right in contending that such an application cannot be entertained at the instance of a “third-party” to the suit; for the expression employed in Rule 4 is "any party". That expression would necessarily mean that only a party to the suit can invoke the remedy under Order XXXIX, Rule 4 of the Civil Procedure Code. There is marked distinction between the words “any party” and “aggrieved person.” The expression ‘party’ is not defined in the Code of Civil Procedure. The meaning of word ‘party’ in the common parlance refers to those by or against whom a legal suit is brought, whether in law or equity, the party plaintiff or defendant. On the other hand, an “aggrieved person” is one whose legal right is affected directly and adversely by a decision of the Court.

5. To buttress the submission, the counsel for the applicant, however, has drawn my attention to the provisions of Order XXXIX, Rules 1, 6 and 7 where the expression used is “any party to a suit.” Relying on the said provisions, it is argued that the Legislature was conscious of the distinction between the expressions “any party to a suit” and “any party.” In other words, it is contended that “any party” means “any person” “an aggrieved person” or “a third-party.”

However, to my mind, the setting in which Rule 4 of Order XXXIX has been placed and going by the scheme of Order XXXIX, I am inclined to accept the submission of the plaintiffs that the expression “any party” in Rule 4 would mean any party to the suit. The counsel for the plaintiffs has rightly drawn a distinction, relying on the expression used in Order XL, Rule 1, sub-rule (2) of the Civil Procedure Code which refers to “any person whom any party to the suit”. The distinction between the word ‘person’ and ‘party’ is recognized at different places in the Civil Procedure Code.

6. To get over this position, the counsel for the applicant would contend that in that case, the Motion filed by the applicant be treated as one under section 151 of the Civil Procedure Code. In the first place, it was necessary for the applicant to spell out the provisions under which the present application has been filed, in the application itself. Assuming that the applicant can now be shown indulgence of contending that the application be treated as one under section 151 of the Civil Procedure Code, even then, the applicant does not deserve any indulgence from this Court. This is so because, the counsel for the applicant fairly accepts that the case of the applicant is that he has purchased the suit property through some of the defendants. Indeed, according to the applicant, he has become owner of the portion of the suit property on account of a consent decree in some proceedings between the defendants and the applicant. It also appears that subsequent thereto, the claim of the applicant in relation to the portion of the suit property has been shown in the Index II Register as well as in the 7/12 extracts. Nevertheless, the fact remains that the applicant is claiming through the defendants. In such a situation, the applicant cannot stay away from the proceedings pending against the defendant

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