IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10142 of 2011 Sri Gopal Narain Singh Versus Chandeshwar Prasad & Ors ----------- 12. 22.11.2011 Heard the learned counsel, Mr. J.S. Arora on behalf of the petitioner and the learned counsel, Mr. M.P. Bharti on behalf of the respondent no.2. In spite of service of notice, no other respondents have appeared. (2) This application under Article 227 of the Constitution of India has been filed by the petitioner against the order dated 25.08.2006 passed by Subordinate Judge VI, Patna in title partition suit no.60 of 2002 whereby the Court below rejected the application filed by the petitioner under Order 1 Rule 10(2) C.P.C. for being impleaded as defendant in the suit. (3) The respondent no.1 filed partition suit against the other respondents. In the said suit, respondent no.2, Akhileshwar Prasad Singh is defendant no.1. The present petitioner filed the application for being added as party on the ground that he had filed suit for specific performance of contract against defendant no.1 which has been decreed and that decree has become final as no appeal has been filed by the defendant no.1. Thereafter a collusive partition suit has been filed by the brother of the defendant no.1 and the petitioner apprehends that the property might be allotted in compromise in favour of other co-sharers 2 although, in fact there had already been partition between the parties and on the basis of that partition, the defendant no.1 who is respondent no.2 herein entered into deed of agreement for sell. (4) The defendant no.2, respondent no.2 filed objection stating that the alleged agreement to sell is forged and fabricated. Application under Order 9 Rule 13 is still pending for setting aside the ex-parte decree. After hearing the parties, the learned Court below rejected the application for being added as party. (5) The learned counsel for the petitioner submitted that since the decree for specific performance of contract is in favour of the petitioner and the same has become final now he has got interest in the suit property and, therefore, the petitioner is a necessary party. Regarding the pendency of Order 9 Rule 13 application is concerned, the learned counsel for the petitioner submitted that the said application was no doubt pending when the order was passed but subsequently the same has been rejected. At present, the decree is there and only a sale deed is to be executed in favour of the petitioner. (6) On the other hand, the learned counsel for the respondent submitted that in partition suit, no stranger can be added as party. (7) In a decision reported in AIR 1999 Orissa 115(Krushna Chandra Nayak vs. Bishwajit Sahoo) in 3 similar facts the Orissa High Court has held that “there is a valid decree for specific performance of contract in favour of the petitioner and the same is final and conclusive having not been challenged in the higher forum. The property covered under the decree is involved in the present suit which is one for partition. True it is, no sale deed has yet been executed in respect of the property covered under the decree, yet the petitioner is a person interested in the suit and his presence is necessary for affective adjudication of the dispute. If he is not brought on record as a defendant and permitted to contest the suit, certain complicacy may arise which may ultimately affect his interest. For example, in the present case, suit for partition, if the parties entered to compromise and the land covered under the decree is allotted in favour of any person other than the one against whom the decree for specific performance of contract was passed, in that case it would be difficult for the petitioner to obtain possession of the said land through Court.” (8) From perusal of the said decision, it appears that the fact of that case is similar to the fact of the present case. In my opinion, therefore, this decision clearly covered the question raised here. It appears that in that case also, the trial court rejected the application for being impleaded as party relying on AIR 1986 Orissa 74. The High Court found that the said decision was overruled 4 by the Apex Court in Civil Appeal No.5293 of 1985 on 28.11.1985. The order of the Apex Court was not reported in any journal. (9) In view of the above facts and circumstances of the case that the decree for specific performance is in favour of the petitioner and further only the respondent no.2 in favour of whom the decree for specific performance has been passed is objecting, in my opinion, the petitioner should be added as party in the suit for defending his interest. The learned Court below has not considered this fact that the suit for specific performance has become final and only the sale deed is to be executed which is to be executed by the Executing Court. Therefore, the learned Court below has failed to exercise the jurisdiction vested in it by law. (10) In the result, this writ application is allowed. The impugned order is set aside and the application filed by the petitioner for being impleaded as party is allowed and he is added as party-defendant. Saurabh ( Mungeshwar Sahoo, J.)