IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2083 of 2008 SHAMBHU PRASAD SINGH @ SHAMBHU SINGH & ORS Versus NAG NARAIN RAI & ORS ----------- 2 16/12/2008 Heard Mr. Shashi Shekhar Dwivedi, learned counsel appearing on behalf of the petitioner, who at the out set submits that this Civil Revision Application is confined only as with regard to the impugned order disposing of the application of the petitioner dated 15.3.2008, whereby and whereunder, prayer was made for incorporating the names of Laxman Tiwary and Binda Devi in the plaint. In other words, Mr. Dwivedi submits that he would not assail the impugned order as with regard to the prayer made for impleadment of Umesh Kumar Yadav, which prayer has also been rejected by a common impugned order. He would further submit that as against that part of the order refusing Umesh Kumar Yadav to be impleaded as a party in the appeal, if needed, the petitioner would file a separate civil revision application. This Court would find that prayer made by the petitioner in his application 2 dated 15.3.2008 proceeded on an assumption flowing from the order of the court below dated 30.11.1985 that it was error on the part of the office of the Court not to carry out and consequently take steps pursuant to allowing application of one Laxman Tiwary and Binda Devi for being impleaded as party to the suit. In the opinion of this Court, that order, however, was itself a qualified order and it was in view of the undertaking given by both of them, that they would neither file any written statement nor they would require to lead evidence that they were given limited permission for arguing the case. In the impugned order the lower appellate Court where the prayer was made for impleadment of both of them as party in the plaint has recorded that two persons after filing of the application had also never appeared nor did they seek leave for their hearing. In that view of the matter, prayer made by the plaintiff-appellant-petitioner for impleadment of these two persons as party in the plaint has to be dealt by the 3 lower appellate Court strictly in view of Order 22, rule 10 of the Code of Civil Procedure which reads as follows:- “10.Procedure in case of assignment before final order in suit-(1)In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2)The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).” From perusal of the impugned order it becomes clear that the Court had found that the two persons who did not even bother to avail the benefit of the order impleading them as party in the court below, were not necessary party for the purpose of appeal. In that view of the matter, if the court below has rejected the prayer of the petitioner that cannot be said to be a jurisdictional error. That being so, this application being wholly misconceived is hereby dismissed. (Mihir Kumar Jha, J.) Abhay Kumar