Lis Pendens Purchaser Can Maintain A Proceeding Under Order IX Rule 13 CPC To Set Aside Ex Parte Decree Passed Against His Transferor: Orissa HC

The Orissa High Court reiterated that the lis pendens purchaser can maintain a proceeding under Order IX Rule 13 of the Civil Procedure Code (CPC) to set aside the decree passed against his transferor.

The Court was dealing with an application under Article 227 of the Constitution challenging the order of the Civil Judge by which an application under Order 1 Rule 10(2) and Order XXII Rule 10 read with Section 146 of the CPC was allowed.

A Single Bench of Justice K.R. Mohapatra observed, “The question that requires consideration in this CMP as to whether a petition for intervention filed by a lis pendens purchaser in a proceeding under Order IX Rule 13 CPC to set aside the ex parte decree against his vendor is maintainable or not. Law is well settled in the case of Raj Kumar (supra) that a lis pendens purchaser can also maintain a proceeding under Order IX Rule 13 CPC to set aside the decree passed against his transferor.”

Advocate Amit Prasad Bose appeared for the petitioner while Advocate Banshidhar Baug appeared for the opposite parties.

Facts of the Case -

The counsel for the petitioner submitted that a plea was filed by the plaintiff/petitioner to declare him as the absolute owner of the suit property. A prayer was also made to declare the sale deed executed by his father in favour of the opposite party to be null and void, not binding on him, and along with other consequential reliefs. In the said suit, the opposite party was set ex parte and the suit was decreed.

Subsequently, the respondent filed an application under Order IX Rule 13 CPC to set aside the ex parte decree. During the pendency of the said application, an application was filed by another person 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 and assailing the same, the petitioner was before the High Court.

The High Court in the above context of the case noted, “In the instant case, the suit was decreed ex parte against the transferor namely, Krushna Chandra Mahapatra. He was also impleaded as Defendant No.1 in the suit, i.e., CS No.1132 of 2009 filed by the present Petitioner. In the sale deed, executed by Krushna Chandra Mahapatra in favour of Opposite Party No.3, there was no whisper with regard to the pendency of the civil suit or ex parte decree passed therein. It may be so as the transferor of the Opposite Party No.3, namely, Krushna Chandra Mahapatra had alleged in the petition under Order IX Rule 13 CPC that he was not served with summons in the suit.”

The Court said that the lis pendens purchaser had no occasion to know about the filing of plea or the ex parte decree passed therein.

“In the meantime, in CS No.57 of 2012 filed by the sister of his vendor, namely, Santilata Mahapatra, the sale deed executed in favour of Krushna Chandra Mahapatra by Rama Chandra Mahapatra and the sale deed executed by Krushna Chandra Mahapatra in favour of the Opposite Party No.3 has been held to be valid and it is also held that valid title passed to Opposite Party No.3 by virtue of the aforesaid sale deeds. It is also admitted by Krushna Chandra Mahapatra that Opposite Party No.3 has been delivered with possession over the suit property pursuant to the sale in its favour and it is in possession over the suit property”, it added.

The Court further observed that the lis pendens purchaser has a subsisting interest over the subject matter of dispute and that he is not being protected by his vendor (respondent).

“Krushna Chandra Mahapatra, the vendor of the Opposite Party No.3 does not challenge the impugned order under Annexure-1. It is the Plaintiff, who is Opposite Party No.1 in the proceeding under Order IX Rule 13 CPC has challenged the order impleading the Opposite Party No.3 as party to the said proceeding. It is not understood as to how the present Petitioner, who is Opposite Party No.1 in the CMA, is prejudiced by the impugned order”, it also remarked.

The Court came to the conclusion that the lis pendens purchaser having interest in the subject matter of dispute is a proper party to the proceeding under Order IX Rule 13 CPC and there is no infirmity in the impugned order.

Accordingly, the High Court dismissed the application.

Cause Title- Bijay Kumar v. Krushna Chandra Mahapatra and Others

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