JUDGMENT

L. MOHAPATRA, J. — The plaintiff is the petitioner in this writ application. She challenges the legality of the order dated 2.7.2004 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in T.S.No. 230 of 2000 allowing an application filed by the opposite party No. 2 under Order 22, Rule 10(1) of the Code of Civil Procedure for being impleaded as defendant in the suit.

2. The suit has been filed by the petitioner against the opposite party No. 1 for specific performance of contract and for permanent injunction in respect of the suit property. Case of the opposite party No. 2 is that during pendency of the suit he purchased A-Schedule property from the opposite party No. 1 who is the sole defendant in the suit under a registered sale-deed dated 20.8.2002 on consideration of rupees three lakhs. The suit property having devolved on him under a registered sale-deed, he is a necessary party to the suit. Though the petitioner did not file any objection to the said petition before the trial Court, learned counsel appearing for the petitioner in the trial Court received a copy of the petition.

3. Shri Patnaik, learned counsel appearing for the petitioner challenges the legality of the order on the ground that earlier the opposite party No. 2 has filed an application under Order 1, Rule 10 C.P.C. for being impleaded as a defendant in the suit. In the said petition case of the opposite party No. 2 was that he had entered into an agreement with the sole defend¬ant-opposite party No. 1 for sale of the land in his favour for consideration of Rupees three lakhs and he had made some part payment to the defendant. According to him the agreement having been executed on 16.12.1999 which is prior to the agreement to sale in between the plaintiff and the defendant, he should be allowed to be added as a defendant. The said petition was reject¬ed on 7.12.2002. The opposite party No. 2 did not challenge the said order, got the sale-deed executed from the sole defendant-opposite party No. 1 on 20.8.2002 and filed an application under Order 22, Rule 10(1) C.P.C. for the same purpose and therefore the trial Court should not have allowed the application, having rejected the earlier petition of the opposite party No. 2 filed under Order 1, Rule 10 C.P.C. Shri Patnaik also submitted that in a case for specific performance of contract, a third party/stranger claiming independent title and possession over contracted property is neither a necessary party nor a proper party and therefore should not have been allowed to be added as a defendant in the suit. In this connection, learned counsel relied upon a decision of the Apex Court in the case of Kasturi v. Iyyamperumal and others, reported in AIR 2005 SC 2813. Shri Samantray, learned counsel appearing for the opposite party No. 2 submitted that the opposite party No. 2 having purchased the A-Schedule property from the sole defendant-opposite party No. 1 under a registered sale-deed during pendency of the suit, the property has devolved on the said opposite party No. 2 and ac¬cordingly not only the application under Order 22, Rule 10(1) C.P.C. is not maintainable but also the same has been rightly allowed by the trial Court. Learned counsel relied upon certain decision in support of such order.

4. There is no dispute that the suit is one for specific performance of the contract based on an agreement executed between the petitioner and the opposite party No. 1 on 10.2.2000. During pendency of the said suit, there is also no dispute that, the opposite party No. 2 filed an application for being impleaded as a defendant under Order 1, Rule 10 C.P.C. on the ground that there was also an agreement between him and the sole defendant-opposite party No. 1 for sale of the property on 16.12.1999. Said petition was rejected by the trial Court on 7.2.2002 on the ground that on the strength of the agreement executed between the opposite parties 1 and 2, no right, title or interest has been created