Ashwani Kumar Mishra, J. - (1.) The writ petition is directed against an order of the appellate court, whereby the appeal has been allowed, arising out an order, rejecting the application under Order 9, Rule 13 CPC.
(2.) Facts, in brief, are that a sale deed was executed in the year 1971 in favour of defendant no.2 to 5 and for cancellation of it, a suit was instituted in the year 2001, which had been decreed ex parte. An application under Order 9, Rule 13 CPC. was filed with the allegation that the property, which was the subject matter of sale deed, was subsequently transferred in the year 1987 and neither the subsequent transferees were arrayed as a party, although their rights had already been perfected over the property, nor the sale deed of 1987 was challenged. The application under Order 9, Rule 13 CPC was rejected. A misc. appeal under Order 43, Rule 1 CPC was preferred, which has been allowed. The appellate court has found that the interest of the applicants/transferees had already intervened, pursuant to the sale deed executed in their favour of the property in the year 1987. They were neither impleaded as a party nor the sale deed executed in their favour was challenged. The appellate court, therefore, has found that the appeal at their instance was maintainable. The appellate court also observed that the filing of the suit as well as the manner in which the decree itself has been passed lacks bona fide. Considering the facts, the appellate court has also found that a case for condonation of delay and to set aside the ex parte decree was made out. Consequently, the application under Order 9, Rule 13 CPC was allowed. Aggrieved by the said order, the plaintiff-petitioner has filed the present writ petition.
(3.) Sri V.K. Singh, learned counsel appearing for the petitioner submits that the applicants/transferees were not a party to the suit, and therefore, at their instance no application under Order 9, Rule 13 C.P.C. was maintainable. Reliance has been placed upon judgments reported in AIR 1964 SC 1889, 2013 (11) SCC 296 delivered by the Apex Court and AIR 1977 DELHI 110, 2010 CLT 464, AIR 1990 Gauhati 66 and AIR 1982 ALJ 99. Having considered the submission advanced as well as upon consideration of the decisions relied upon, this Court is of the opinion that in the facts and circumstances of the present case, the contention advanced on behalf of the petitioner is not liable to be accepted. Law is otherwise settled that ordinarily an application under Order 9, Rule 13 CPC would be entertained only at the instance of a person, who is a party to the suit. The reasoning behind the proposition is that the decree operates only against the parties to the suit and a third party cannot be permitted to challenge it as it cannot be said to be a person aggrieved. However, in the facts and circumstances of the present case, this Court finds that on the date when the suit itself had been instituted i.e. in the year 2001, the property which was the subject matter of sale deed executed in the year 1971 under challenge, had been further transferred and transferees/applicants' right in the property pursuant to the sale deed executed in the year 1987 had come into being. The ownership of the property, therefore, had been transferred and the defendants to the suit were left with no right in the suit property. The transferees/applicants pursuant to the sale deed executed in the year 1987 had perfected their right over the property. It is but obvious that after the sale deed was executed in 1987, the vendees of the sale deed of the year 1971 must have lost interest, and therefore, the applicants/transferees were actually the persons aggrieved, who were liable to be impleaded as a party to the proceedings. The plaintiff-petitioner is trying to take advantage of their own wrong. In such circumstances, the lower appellate court has found that the transaction itself was not bona fide and the intent was to divest the rights of the applicants/transferees without impleading them or challenging sale deed executed in their favour.;