HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 109/2021 Jaswant ----Appellant Versus Prem Singh S/o Indraj Jat ----Respondent Connected With S.B. Cross Objection (Civil) No. 22/2021 Jaswant S/o Harisingh S/o Chidiya ----Appellant Versus Prem Singh S/o Indaraj Jaat ----Respondent For Appellant(s) : Mr. R.K. Daga with Mr. Rahul Singh Chauhan, Ms. Laveena Agarwal, Ms.

Khushi Kabara and Mr. Pankaj Soni For Respondent(s) : Mr. Vimal Chand Choudhary with Mr. Yogesh Kumar Tailor HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

Order

11/03/2025 S.B. Civil Second Appeal No. 109/2021:-

1. Considered application No.1/2024 filed by appellant under Order I Rule 10 CPC read with Order VI Rule 17 and read with Order 41 Rule 2 of CPC filed to implead Suresh Kumar a subsequent auction purchaser and also the State Bank of India, which has filed a suit for recovery, as party respondents.

2. Learned counsel for appellant while referring sale certificate dated 27.06.2023 submits that the suit property for which respondent-plaintiff has filed a suit for cancellation for sale deed was sold at behest of State Bank of India in pursuant to judgment and decree dated 04.11.2011 in Civil Suit No.38/2007 and a sale certificate was issued on 27.09.2023. He submits that Suresh Kumar is a subsequent purchaser in the suit property and mutation has already been recorded in his favour by Tehsildar. He also referred the cause of action and submitted that the instant second appeal has already been admitted by this Hon’ble Court. He further submits that both Suresh Kumar and State Bank of India are necessary parties without whose impleadment, a proper adjudication is not possible.

3. Aforesaid contentions were opposed by learned counsel for respondent on the ground that the property was mortgaged in year 2002 and in failing to repay the loan, the State Bank of India has filed a suit for recovery in year 2007 which was decreed in 2011. He also submitted that pursuant to judgment and decree, the property in question was sold independently by the bank and auction purchaser Suresh Kumar has purchased the property in an open auction, who is a bona fide purchaser and he cannot be impleaded in the instant case in wake of principle of law settled by Hon’ble Supreme Court in case Sudhamayee Pattnaik & Ors. Vs. Bibhu Prasad Sahoo & Ors. AIR 2022 SC 4304. At last, he submitted that the judgment and decree passed in favour of SBI cannot be set aside by this Court in the instant proceedings and moreover, the appellant cannot pray for impleadment of a stranger as he is not a plaintiff. He submits that the plaintiff is dominus litus and against desire and wish of plaintiff (respondent herein), no third party can be impleaded as party.

4. Heard learned counsels for the parties and perused the judgment as referred by learned counsel for respondent.

5. A civil suit was filed by Prem Singh for cancellation of sale deed dated 02.07.1981 and same was partially decreed thereafter plaintiff has preferred a regular appeal No.13/2020 and defendants have preferred regular appeal No.18/2020 and both the appeals were decided on 15.02.2021.

6. As a result, the relief for cancellation of sale deed dated 02.07.1981 was further declined by the Appellate Court, while affirming the finding on the point. The appeal preferred by plaintiff was further partially allowed, but appeal preferred by present appellant-defendant was dismissed.

7. While considering the instant appeal, this Court has admitted the appeal on 07.03.2024 on formulated substantial question of law. Herein, the plaintiff has also filed a cross-objection and same is tagged with instant appeal. While admitting the second appeal, the parties were directed to maintain status quo till disposal of appeal.

8. During pendency of this appeal, a sale certificate dated 27.09.2023 was issued by learned Additional District in pursuant to execution No.04/2012 filed by State Bank of India to execute decree dated 04.11.2011 in Civil