ORDER

The petitioner, who is the proposed judgment debtor No.4, filed this petition assailing the order dated 17.11.2017 passed on IA.No.2 in Execution No.75/2012 on the file of I Additional Civil Judge, Chitradurga, (for short, 'the trial Court') wherein the application under Order I Rule 10(2) of CPC filed by the respondent No.1-decree holder was allowed.

2. Sri.Yogesh V Kotemath, learned counsel for Sri.Virupakshaiah P.H., learned counsel on record for the petitioner submits that respondent Nos.2 to 4 have executed registered sale deed in favour of the petitioner on 05.12.2008 and after execution of the sale deed, the petitioner is in possession and enjoyment of the subject property. It is submitted that respondent No.1-decree holder has filed O.S.No.536/2009 against respondent Nos.2 to 4 for the relief of specific performance of contract. The said suit came to be decreed. Thereafter, the decree holder filed Execution No.75/2012 against respondent Nos.2 to 4. In the said proceedings, IA.No.2 was filed by respondent No.1-decree holder under Order I Rule 10(2) of CPC to implead the petitioner. The trial Court, without appreciating the fact that respondent Nos.2 to 4 have executed registered sale deed in favour of the petitioner on 05.12.2008 which was much prior to the filing of the suit, allowed the application I.A.No.2 filed by the respondent No.1-decree holder. Hence, the petitioner is not a proper and necessary party to the Execution Proceedings. In support of his contention, he placed reliance on the decision of this Court in the case of Choodanatha Setty v. Gopalachetty reported in I.L.R. 1995 KAR 1815 and submits that Order I Rule 10 of CPC does not apply to the Execution Proceedings.

Hence, he seeks to allow the petition.

3. Sri.R.Shashidhara, learned counsel appearing for the respondent No.1-decree holder supports the impugned judgment of the trial Court and submits that the petitioner can raise his objections in the Execution Petition, once he is impleaded in the proceedings. It is further submitted that the petitioner is necessary party to the proceedings as he is the purchaser of the subject property against which a decree has been obtained by respondent No.1. Hence, he seeks to dismiss the petition.

4. I have heard the arguments of the learned counsel for the petitioner, learned counsel for the respondent No.1 and meticulously perused the material available on record.

5. The admitted facts are that respondent No.1 is the decree holder in O.S.No.536/2009 against respondent Nos.2 to 4 for specific performance of contract. The Respondent No.1 filed the Execution Petition in Execution No.75/2012. During pendency of the said Execution Petition, the decree holder/respondent No.1 herein filed the application to implead the petitioner in the said proceedings. The said application came to be allowed by the trial Court by recording the finding that the property was alienated during the pendency of the civil suit in favour of the petitioner-proposed judgment debtor No.4. The said finding is contrary to the very averments made in the accompanying affidavit to the application for impleading filed by respondent No.1/decree holder. The statement of objections filed by the petitioner to the said application also indicates that the property was sold much prior to the filing of the suit. The sale deed at Annexure-D makes it clear that respondent Nos.2 to 4 have executed the sale deed in favour of the petitioner on 05.12.2008 which is much prior to filing of the suit by respondent No.1-decree holder.

6. Hence, considering the fact that the sale deed at Annexure-D was executed much prior to the filing of the suit by respondent No.1, I am of the considered view that the trial Court has committed grave error in allowing the application filed under Order I Rule 10(2) of CPC, the petitioner is neither a proper nor a necessary party to the Execution Proceedings.

7. This Court, in the Choodanatha Setty's case referred supra, has held that Order