A lis pendens purchaser can maintain a petition under Order IX Rule 13 CPC to set aside an ex parte decree against their transferor, ensuring protection of their interest in the suit property.

JUDGMENT :

K.R. MOHAPATRA, J.

1. This matter is taken up through hybrid mode.

2. Order dated 12^th March, 2024 (Annexure-1) passed in CMA No.563 of 2012 is under challenge in this CMP, whereby learned Civil Judge, (Senior Division), Bhubaneswar allowed an application filed by the Opposite Party No.3 under Order I Rule 10(2) and Order XXII Rule 10 read with Section 146 CPC.

3. Mr. Bose, learned counsel for the Petitioner submits that CS No.1132 of 2009 was filed by the Plaintiff-Petitioner to declare him as the absolute owner of the suit property. A prayer was alsomade to declare the sale deed executed by his father late Rama Chandra Mahapatra in favour of Krushna Chandra Mahapatra to be null and void, not binding on him and along with other consequential reliefs. In the said suit, Krushna Chandra Mahapatra was set ex parte and the suit was decreed. Subsequently, said Krushna Chandra Mahapatra filed CMA No.563 of 2012 under Order IX Rule 13 CPC to set aside the ex parte decree. During pendency of the CMA, Opposite Party No.3 filed an application under Order I Rule 10 (2) and Order XXII Rule 10 read with Section 146 CPC to be impleaded as a party to the proceeding under Order IX Rule 13 CPC. The said application was allowed vide order dated 12^th March, 2024 (Annexure-1). Assailing the same, the present CMP has been filed.

3.1. It is his submission that after the suit was decreed ex parte Krushna Chandra Mahapatra sold the entire suit property to Opposite Party No.3 by virtue of RSD dated 28^th June, 2012. On the basis of such sale, the Opposite Party No.3 filed an application for intervention. When said Krushna Chandra Mahapatra, namely, his vender is prosecuting the CMA diligently, there was no necessity to implead the vendee/lis pendens purchaser as a party to the proceeding under Order IX Rule 13 CPC. He drew attention of this Court to the objection filed by Krushna Chandra Mahapatra, wherein at para-5, he has categorically stated that he is honestly and diligently prosecuting the case. It is also stated in the objection that said Krushna Chandra Mahapatra has already adduced oral as well as documentary evidence by examining himself as O.P.W.1 and the evidence from his side (Krushana Chandra Mahapatra) has already been closed. Thus, at this stage, impleadment of a lis pendens purchaser is nothing but to protract the litigation. Although, it is alleged that after filing of the petition under Order IX Rule 13 CPC, Krushna Chandra Mahapatra colluded with the Plaintiff, namely, the Petitioner in this CMP, but, there is no material to that effect. On the other hand, materials available on record clearly disclose that Krushna Chandra Mahapatra is prosecuting the litigation diligently. He, therefore, submits that there is no necessity to implead said lis pendens purchaser as a party to the proceeding under Order IX Rule 13 CPC, which will create further complications.

4. Mr. Baug, learned counsel for the contesting Opposite Party No.3 vehemently objects to the same. It is his submission that late Rama Chandra Mahapatra during his lifetime, had purchased the suit land from one Anjan Kumar Ghosh vide RSD dated 13^th September, 1995. Said Rama Chandra Mahapatra sold the suit property vide RSD No.13097 dated 26^th December, 2005 to Krushna Chandra Mahapatra (Petitioner in CMA). In the plaint, in CS No.1132 of 2009, the Plaintiff-Petitioner provided wrong address of Krushna Chandra Mahapatra. As such, summons could not be served on him and he was unaware of the litigation, i.e., CS No.1132 of 2009. Said Krushna Chandra Mahapatra was also unaware of the ex parte decree dated 19^th May, 2019. Bei