IMPORTANT POINT
Application under Order 1 Rule 10 C.P.C. in application under Order 9 Rule 13 C.P.C. has to be allowed although this shall not permit petitioners at stage of Order 9 Rule 13 C.P.C. to expand dimension of adjudication beyond scope of Order 9 Rule 13 C.P.C.

ORDER

Dr. Pushpendra Singh Bhati, J.—In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.

2. The petitioners have preferred this writ petition claiming the following relief:-

“It is, therefore, most humbly and respectfully prayed that this writ petition may kindly be allowed and the order impugned dated 10.01.2020 (Annex.9) passed by the learned Additional District Judge No.3, Udaipur in Civil Case No.74/2018 may kindly be quashed and set aside and the application filed by the present petitioners under Order 1 Rule 10 CPC read with Section 151 CPC may kindly be allowed.”

3. The respondent no.1 Raj Kumar Chanchawat preferred a suit for specific performance of the contract against the defendants Ram Niranjan (respondent no.5) and others. The said suit was decreed vide judgment and decree dated 17.12.2016 in favour of respondent no.1 - Raj Kumar Chanchawat and in pursuance of the decree dated 17.12.2016, sale deed was executed in favour of the Raj Kumar Chanchawat on 13.09.2017. Raj Kumar respondent No.1 in lieu sold the property to the present petitioners vide registered sale deed dated 25.10.2017 which was registered on 26.10.2017. The contesting respondents i.e. respondents no.5 and 6, particularly respondent No.5, who was the judgment-debtor in the decree dated 17.12.2016 and the present respondent No.6 Anirudh Sharma who stepped into the shoes of the judgment-debtor, moved an application under Order 9 Rule 13 C.P.C. on 03.05.2018 to set aside the ex-parte decree dated 17.12.2016. The present respondent no.1 Raj Kumar, who stepped into the shoes of the decree holder, moved an application under Order 1 Rule 10(2) C.P.C. for deletion of the name of Aniruddh Sharma but the said application was dismissed vide order dated 29.10.2018 and Aniruddh Sharma was maintained as a party. The petitioners thereafter moved another application under Order 1 Rule 10 C.P.C. that since they have stepped into the shoes of Raj Kumar, decree holder, therefore, they may be impleaded as party to contest the application filed under Order 9 Rule 13 C.P.C. The learned Court below dismissed the said application on the ground that the limited proposition of Order 9 Rule 13 C.P.C. only requires the parties to prove that the notices were not properly served in the spirit of Order 9 Rule 13 C.P.C. and no merit of the matter is involved, therefore, it was not necessary for the petitioners to be arrayed as party.

4. Both the learned counsels for the parties have relied upon the judgment of Hon’ble Apex Court passed in the case of Raj Kumar Versus Sardari Lal and Ors. reported in (2004) 2 SCC 601. The relevant paras of the judgment are as follows:-

“6. The present case has a peculiar feature. The transfer took place during the pendency of the suit but the decree passed ex-parte in the suit is sought to be set aside not by the defendant on record but by a person who did not come or was not brought on record promptly and hence apparently appears to be a third party. However, as we have already stated hereinabove, the person would be a representative-in-interest of the defendant judgment-debtor.

7. The solution lies in section 146 of the Code of Civil Procedure, 1908. It provides:-

“146. Proceedings by or against representatives.—Save as otherwise provided by this Court or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or application may be made by or against any person claiming under him”.

8. A lis pendens transferee from the defendant, though not arrayed as a party in the suit, is still a person claiming under the defendant. The same principle of law is recognized in a different perspective by Rule 16 of Order 21 of the CPC which speaks of transfer or assignment inter vivos or by operation of law made by the plaintiff-decree-holder. The transferee may apply for execution of the decree of the Court whi