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2010 Supreme(J&K) 16
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sunil Hali, J.
Sutlej Industries Ltd. - Appellant
Versus
Shirdhiya Synthetics Pvt. Ltd. - Respondent
Condonation No. 125/2009, Civil Revision No. 10/2009
Decided On : 01 January, 2010
Advocate For Appellant: D.S. Thakur
Advocate For Respondent: S.K. Shukla
The impleadment of a party in a suit can only be ordered if necessary for adjudication upon and settling all questions involved in the suit.
Headnote:
Attachment - Civil Procedure - Order 37, Order 38 Rule 5 - Rule 10
Fact of the Case:
The petitioner filed a suit for recovery under Order 37 of the Code of Civil Procedure and sought attachment of a property. An application for attachment was filed, and an intervening party sought to be impleaded as a defendant. The trial Court dismissed the application for impleadment as a defendant but directed impleadment as a party in an application under Order 38 Rule 5.
Finding of the Court:
The court found that the impleadment of the intervening party as a party was not necessary and set aside the trial Court's order.
Issues: The issues involved the permissibility of intervention of the intervening party and the interpretation of the rules governing impleadment in a suit.
Ratio Decidendi: The court interpreted Order 1 Rule 10 of the Code of Civil Procedure and concluded that impleadment of a party in a suit can only be ordered if necessary for adjudication upon and settling all questions involved in the suit. The court also emphasized that proceedings under Order 38 Rule 5 can be necessitated only against a person who is a defendant before the Court.
Final Decision: The revision petition was allowed, and the trial Court's order was set aside.
1. On the no objection of learned counsel for the respondent, this application is allowed, delay in filing the revision petition is condoned and revision petition is taken up for consideration.
C. Revision no. 10/2009
2. Petitioner has filed a suit for recovery of Rs. 52,03,865/- under Order 37 of the Code of Civil Procedure before learned Additional District Judge Kathua. An application for attachment of the property before judgment was filed during the pendency of the suit. The trial Court passed the following order on 20.04.2007 in the said application:-
"Issue notice to other side to show cause why plots G-4 & 5 situated at Ind. Area Bhilwara (Raj) be not attached & put up for their objections on 05.05.2007. Meanwhile the other side is temporarily restrained from alienating or transferring the same to any body whosoever till next hearing."
3. An application came to be filed by M/S Radha Krishna Sutz Pvt. Ltd. for being impleaded as party-defendant to the suit. This plea of the applicant to intervene in the application of the plaintiff filed under Order 38 Rule 5 of the Code of Civil Procedure was allowed, however, it was not impleaded as a party-defendant to the suit for the reasons that it was neither a necessary nor a proper party. For having been allowed to intervene in the application of the plaintiff for attachment of the property before judgment, this revision has been filed.
4. The plaintiff-petitioner has sought attachment of the property for which an agreement to sell for a consideration amount of Rs. 45,11,000/- had been executed by defendant no.1 in favour of the intervener. This agreement has been executed at a time when there was no order of attachment. Order 38 Rule 5 envisages that attachment before judgment would be made where the Court is satisfied that the defendant, is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of Court with the intention to obstruct or delay the execution of any decree that may be passed against him. This provision would not apply where the sale deed has already been executed by the defendant in favour of a third person. A transaction of sale having already taken place even prior to the institution of a suit cannot be said to have been made with the intention to obstruct or delay the execution of any decree. Rule 10 states that attachment before judgment shall not affect the rights existing prior to the attachment of persons not party to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree. This provision makes it clear that attachment before judgment shall not affect the rights, existing prior to the attachment of person not party to the suit.
5. The question for consideration in the present revision petition is as to whether the intervention of respondent no.4 was permissible or not.
6. The power to implead a party in a suit is governed by Order 1 Rule 10 of the Code of Civil Procedure. For facility of reference, rule 10 (2) is reproduced below:-
"(2) Court may strike out or add parties:- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
7. The plain language of this rule clearly envisages that the impleadment of a party in a suit as plaintiff or a defendant can be ordered under this rule if such impleadment is necessary for purposes of adjudication upon and settle all q
