The lies pendens purchaser, not having impleaded himself as a party, cannot subsequently claim that the decree is not binding on him.

JUDGMENT :

C.R. Dash, J. - Whether a lies pendens purchaser should be added as a party either Under Order-1 Rule-10 or Order-22, Rule-10, CPC is the main question that arises for consideration in the present writ petition.

2. The present petitioner is the plaintiff. He filed Civil Suit No.75 of 2003 in the court of learned Civil Judge (Junior Division), Puri inter alias for declaration that he (plaintiff) is the only legal successor of Swarnalata Mohanty and Radhashyam Mohanty of Kumbharpada, Puri and defendant no.1 (present opp. Party no.8) is not the legally married wife of said Radhashym Mohanty and defendant no.2 (present opp. Party no.1) is not the daughter of said Radhashyam Mohanty. He also sought for other incidental and ancillary reliefs as enumerated in paragraph-3 of the writ petition. Subrat Kumar Nayak (opp. party no.9) is the husband of Binodini Mohanty (defendant no.2-present opp. party no.1) and son-in-law of Bainamani Mohanty, (defendant no.1-present opp. party no.8). The aforesaid defendant no.1 and 2 filed their joint written statement denying the plaint averments. They appeared in the court through aforesaid Subrat Kumar Nayak (opp. party no.9), who is a practicing advocate. In course of the proceeding in the suit, defendant no.1 (Bainamani Mohanty) sold the disputed property, which is the subject matter of the suit in favor of Subrat Kumar Nayak (opp. party no.9). Such fact regarding devolution of interest of the suit property on Subrat Kumar Nayak (opp. party no.9) was not brought to the notice of the court. When Subrat Kumar Nayak (opp. party no.9) tried to take possession over the suit property by force, the plaintiff came to know about the lies pendens transfer which was effected in the year 2006. In order to avoid multiplicity of proceedings and to ensure that the suit reaches its logical, legal and effective determination, the plaintiff (present petitioner) filed a

INDIAN LAW REPORTS, CUTTACK SERIES [2011]

petition under Order-1, Rule-10 read with Oder-22, Rule-10, C.P.C. for impleading aforesaid Subrat Kumar Nayak (opp. party no.9), the purchaser of the suit property as a party in the suit. Defendant no.2 (present opp. party no.1) contested the petition by asserting that she is in peaceful possession of the suit property and no attempt had been made by her husband (Subrat Kumar Nayak) to enforce possession over the disputed property.

3. Learned court below on consideration of the inter se pleadings of the parties in the proceeding and their submissions, ruled that a lies pendens purchaser being neither a necessary party nor a proper party need not be impleaded when the suit has been posted for argument. Accordingly the petition filed by the present petitioner (plaintiff) under Order-1, Rule-10 read with Order-22, Rule-10, C.P.C. was dismissed. The petitioner has, therefore, been obliged to move this Court under Article 227 of the Constitution of India.

4. Mr. Amit Prasad Bose, learned counsel for the petitioner submits that when Order-22, Rule-10, C.P.C. clearly states in favor of the substitution of the assignee on assignment, creation or devolution of any interest during pendency of the suit, the learned trial court should have impleaded Subrat Kumar Nayak (opp. party no.9) as a party by invoking its jurisdiction under Order-1, Rule-10 read with Order-22, Rule-10, C.P.C. It is further submitted that the learned court below having failed to follow the decision of the Hon'ble Supreme Court in the case of Marurudraiah & ors. v. B. Sarojamma and ors.; 2009 SAR (Civil) 557 and the decision of this Court in the case of Shuvam Construction Pvt. Ltd. Vs. Smt. Babita Mohanty and Another the order impugned is not sustainable in the eyes of law. He also relies on the decision of Hon'ble Supreme Court in the case of Dhanalakshmi and others v. P. Mohan and others; AIR 2007 S.C. 1062, to substantiate his contention that a lies pendens purchaser would be a necessary and a proper party to the suit.

Learned counsel for t