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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP NO. 1299 OF 2022

Tanmay Kumar Pattnaik and others

....

Petitioners

Mr. Soumya Mishra, Advocate

-versus-

Bibhu Prasad Sahoo and others

&. Opp. Parties

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

20.12.2022

1. 1.

This matter is taken up through hybrid mode.

2.

Order dated 21^st May, 2022 (Annexure-9) passed by

learned Senior Civil Judge, Khurda in C.S. No.298 of 2011 is

under challenge in this CMP, whereby an application filed by

Defendant Nos.1 to 4 for impleation of list pendense purchasers

as parties to the suit has been allowed.

3.

Mr. Mishra, learned counsel for the Petitioners submits

that the case is a chequered history. Earlier the Defendant-

Opposite Party No.1 was restrained from alienating the suit

property in an application under Order XXXIX Rules 1 and 2

C.P.C. in I.A. No.167 of 2011. The said order was challenged

unsuccessfully up to this Court in CMP No. 1255 of 2019.

Subsequently, the Plaintiffs alienated certain portions of the suit

land and an application under Order 1 Rule 10 C.P.C. was filed,

which was allowed. The said order was challenged by the

predecessor of the Petitioners, namely, Sudhamayee Pattnaik

and others in CMP No.258 of 2019, which was dismissed vide

order dated 28^th March, 2022 upholding the impleation of lis

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pendense purchasers as parties to the suit by learned trial Court.

However, order of this Court was assailed before the Hon9ble

Supreme Court and in a reported decision, the Hon9ble Supreme

Court in the case of Sudhamayee Pattnaik and others 3v-

Bibhu Prasad Sahoo and others in Civil Appeal No.6370 of

2022, (2022 SCC Online 1234) in which it is held as under:

<6. Now so far as the reliance placed upon the

decision of this Court in the case of Rahul S. Shah

(supra) by the High Court is concerned, on facts, the

said decision shall not be applicable to the facts of the

case on hand. The said decision was not a case of an

application under Order 1 Rule 10 C.P.C. to implead the

persons not party to the suit as defendants and that too

at the instance of the defendants.=

4.

Subsequently, certain other portions of the suit land

were alienated during pendency of the suit and an application

under Order 1 Rule 10(2) C.P.C. was filed by Defendant Nos. 1

to 4, which was allowed vide order dated 21^st May, 2022 as at

Annexure-9. Assailing the same, this CMP has been filed.

5.

It is submitted by Mr. Mishra, learned counsel for the

Petitioner that in view of the ratio decided in the case of

Sudhamayee Pattnaik and others (supra) in a similar

application filed by Defendant Nos.1 to 4 under Order 1 Rule 10

C.P.C. earlier in the instant suit, Hon9ble Supreme Court has

held as quoted (supra). Hence, the impugned order is not

sustainable.

6.

Taking note of the submission of learned counsel for the

Petitioner, this Court finds that after the impugned order under

Annexure-9 was passed on 21^st May, 2022, the Hon9ble

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Supreme Court dealt with the earlier application filed under

Order 1 Rule 10 C.P.C. and observed as quoted (supra).

7.

In view of the above, the petition under Order 1 Rule 10

C.P.C. requires fresh consideration keeping in mind the

observation made by the Hon9ble Supreme Court.

8.

Accordingly, this Court feels that no fruitful purpose

will be served by issuing notice to the Opposite Parties. Hence,

the impugned order under Annexure-9 is set aside and the

matter is remitted back to the learned trial Court for fresh

adjudication of the petition under Order 1 Rule 10 C.P.C.

keeping in mind the observation made by the Hon9ble Supreme

Court in Sudhamayee Pattnaik an