MANOJ MISRA,J. - (1.) Heard learned counsel for the petitioner and Sri Anshu Chaudhary for the respondents.
(2.) The brief facts giving rise to the present case are as follows: the plaintiffs respondents obtained an ex parte decree in O.S. No. 8 of 2000 against one Gurucharandas. The ex parte decree was passed on 23.7.2002. On 12.5.2010, Gurucharandas applied for setting aside the ex parte decree under Order 9, Rule 13 CPC. Thereafter Gurucharandas filed an application No. 72Ga for withdrawing his application under Order 9, Rule 13 CPC. It appears that in the meantime, Gurucharandas died. An application 76Ga was filed by the petitioner seeking impleadment on the basis of a gift deed dated 19.12.2009 executed by Gurucharandas in favour of the petitioner. Learned Magistrate before whom the proceeding under Order 9, Rule 13 CPC was pending as Misc. Case No. 10 of 2010, allowed the application 76Ga and disposed of the application 72Ga as having become infructuous. Against the order passed by the trial court dated 25.9.2012, a Misc. Civil Appeal No. 26 of 2013 was filed by the plaintiffs respondents which came to be allowed by order dated 5.9.2016 passed by the 9th Additional District Judge, Mathura by which the order dated 25.9.2012 was set aside on the ground that the petitioner was not a transferee lis pendens who could seek impleadment under Order 22, Rule 10 CPC inasmuch as the proceedings of the suit had terminated by passing of an ex parte decree dated 23.7.2002 whereas the application under Order 9, Rule 13 CPC was filed on 12.5.2010 and the gift deed, on the basis of which the petitioner stakes claim, was executed on 19.12.2009, when no proceeding was pending therefore the provisions of Order 22, Rule 10 CPC were not applicable.
(3.) Learned counsel for the petitioner has assailed the order passed by the court below by placing reliance on a decision of the Apex Court in Amit Kumar Shaw and another v. Farida Khatoon: AIR 2005 SC 2209. In particular reliance has been placed on paragraph 16 of the aforesaid decision so as to contend that under Order 22, Rule 10 CPC an alienee pendente lite may be joined as party because the transferor on having transferred his right may have lost interest in the litigation and therefore to do substantial justice, an alienee may be allowed to be impleaded. It has thus been contended that since it is not in dispute that there had been a gift deed executed by Gurucharandas in favour of the petitioner, the petitioner was entitled to be impleaded by invoking the principle enshrined under Order 22, Rule 10 CPC.;