CIVIL REVISION No.1071 OF 2001 ------- MD NASIRUDDIN ------- petitioner Versus MD. PARVEZ ALAM & ORS ------- opposite parties. ------- For the petitioner: M/s Sunil Kumar Singh, Advocate & Ravi Ranjan, Advocate For opposite party no.1: Mr. Arun Kumar Prasad, Advocate ------ P R E S E N T THE HON'BLE MR. JUSTICE S.N.HUSSAIN S.N.Hussain,J. Heard learned counsel for the petitioner and learned counsel for opposite party no.1. No one appears for other opposite parties in spite of valid service of notice upon them. 2. This civil revision has been filed on behalf of the plaintiff-decree holder challenging order dated 01.06.2001 by which the learned Special Execution Munsif, Muzaffarpur, allowed the petition of Opposite Party no.1 filed under the provision of Order I Rule 10 of the Code of Civil Procedure and impleaded him as co-petitioner in Miscellaneous Case No.01A of 1997. 3. The instant matter arises out of Title Suit No.132 of 1988 which was filed by the plaintiff-petitioner against opposite parties 2nd and 3rd Sets for specific performance of contract on the basis of agreement for sale dated 19.01.1988 by which the predecessor of opposite party 2nd set agreed to sell the suit land to the plaintiff- petitioner for consideration of Rs.10,000.00 out of which advance amount of Rs.5,000.00 had already been paid. The said suit was decreed ex parte by the trial court vide judgment and decree dated 12.12.1995. It transpires that Opposite party 2nd Set filed Miscellaneous Case No.01A of 1997 under the provision of Order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’ for the sake of brevity) against the ex parte judgment and decree and during the pendency of the said - 2 - Miscellaneous Case further proceeding of Execution Case no.06 of 1996, which was filed by the plaintiff for execution of the trial court decree, was stayed. It further transpires that during pendency of the miscellaneous case Opposite Party Ist Set filed a petition in the court below under the provision of Order I Rule 10 of the Code for being impleaded as co-petitioner in the Miscellaneous Case. The said petition has been allowed by the learned court below vide the impugned order dated 01.06.2001 which has been challenged by the plaintiff in the instant civil revision. 4. The contention of learned counsel for the petitioner is that since opposite party no.1 was not a party to the suit, although according to him he had purchased the suit land during pendency of the suit, he was not legally entitled to file a petition under Order IX Rule 13 of the Code of Civil Procedure for challenging the ex parte decree. Hence, according to him, the impugned order being illegal and without jurisdiction, O.P.no.1 cannot be given any liberty to be impleaded as a co-petitioner in the miscellaneous case. 5. On the other hand, learned counsel for opposite party no.1 vehemently opposes the points raised by the learned counsel for the plaintiff-petitioner and submitted that after the execution of the sale deed, opposite party no.2 had lost all interest in the suit/case as well as in the suit land due to which there was every chance that the said case would suffer and hence, it was essential that the intervenor, who was non-else than a purchaser from O.P.No.2 who had stepped into his shoes, has to be added as co-petitioner in the miscellaneous case. The learned counsel for the opposite parties relied upon a decision reported in AIR 1958 Supreme Court 886 ( Razia Begum Vs. Sahebzadi Anwar Begum and others) in which it was held by the Apex Court that the courts had full jurisdiction to implead the parties, if it is necessary for the adjudication of the suit. He also relied upon a decision of this court reported in AIR 1952, Patna 72 (Dulhin Suga Kuer and another Vs. Deorani Kuer and others) in which it was held that when a transfer is made subsequent to an ex parte decree the transferees - 3 - can file a petition under Order IX Rule 13 of the Code of Civil Procedure, if they are adversely affected. Hence, according to him, this civil revision is fit to be dismissed as there is no illegality in the impugned order of the learned court below. 6. After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that opposite party no.1 had purchased the suit land much prior to the ex parte decree but in spite of that he never intervened in the title suit, nor he had filed any petition in that regard and furthermore he has also not mentioned anywhere that he had no information about the suit or that he was a bonafide purchaser for value without notice. Hence, it is an undisputed fact that O.P.No.1 had full knowledge of the suit but he did not appear therein and allowed the suit to be decreed ex-parte and hence I see no occasion for him at all to appear in the miscellaneous case to be impleaded as co-petitioner when his vendor, who was defendant in the suit, appears to be quite vigilant as he had himself filed the miscellaneous case against the ex parte decree. 7. So far the aforesaid rulings are concerned, the decision of the Hon’ble Apex Court in case of Razia Begum(supra) is with respect to a petition under Order I Rule 10 of the Code filed in a suit which in the facts and circumstances of this case is completely different. Furthermore, so far the aforementioned decision of this court in case of Dulhin Suga Kuer and another (supra) is concerned, it is apparent that in the said case the intervenor had purchased the suit property after the ex-parte decree and hence he was allowed to file miscellaneous case under Order IX Rule 13 of the Code. Thus from the aforesaid circumstances it is quite clear that the facts are completely different and are not applicable to the instant case. 8. From the impugned order it is also apparent that the learned court below has completely ignored the aforesaid relevant facts involved in the case and the real points involved and has decided the matter illegally committing serious error of jurisdiction as there was no occasion at all to implead opposite party no.1 as co-petitioner in the - 4 - miscellaneous case. In the said circumstances, this civil revision is allowed and the impugned order of the learned court below is set aside. However, opposite party no.1 will be at liberty to take steps, which are available to him, in accordance with law. ( S.N.Hussain,J.) Patna High Court,Patna Dated, 15th April, 2008 Sunil/ N.A.F.R