M. Joseph Chnady vs Neelakandan Namboothiri And Ors

The petitioner is a third party to proceedings pending before Munsiff Court, Vaikom. He filed Ext.P5[I.A.No.4/2021] under Section 151 read with Sections 141 &94(e) of the Code of Civil Procedure,1908(for short, 'the C.P.C.') for declaring title and possession over suit property and dismissing the application filed by original defendants for setting aside the ex parte decree.

The first respondent herein, who is the original plaintiff in O.S.No.198/2018 obtained an ex parte decree cancelling documents executed by him in favour of original defendants who are his son-in-law and daughter. The ex parte decree was passed on 25.07.2019. After cancelling the documents, the plaintiff sold the suit property in favour of the petitioner herein.

According to the petitioner, he is a bona fide purchaser who is entitled to title and possession of the suit property. The original defendants filed Exts.P3 and P4 applications seeking to set aside the ex parte decree after condoning delay. These applications are pending on the file of Munsiff Court, Vaikom undisposed of.

The grievance expressed by the petitioner is that in the event of delay being condoned and ex parte decree consequentially set aside, he would be put to untold miseries and hardship. Therefore, he filed Ext.P5 application for necessary reliefs.

The learned counsel for respondent Nos.2 and 3 submitted that Ext.P5 application is not maintainable under law and no relief could be granted by the court below.

After hearing the learned counsel on both sides, I am of the opinion that the legal remedy open to the petitioner is to invoke Order I Rule 10(2) of the C.P.C. and apply to court below to permit him to be impleaded as additional party to the suit. Inasmuch as the petitioner is an assignee of the suit property, he steps into the shoes of the original plaintiff under law and thereby acquires right to oppose applications filed for condoning delay and setting aside ex parte decree. Once the petitioner applies for being impleaded as additional party to the proceedings, the court below shall consider the application and permit him to be impleaded as additional party to the proceedings.

This original petition filed for issue of direction to the court below to take up Ext.P5 prior to the consideration of Exts.P3 and P4 is not maintainable under law and no relief can be granted to the petitioner in that respect.

In the result, original petition is dismissed. It is, however, made clear that it will be open to the petitioner to approach the court below and file an application under Order I Rule 10(2) of the C.P.C., seeking permission to implead him as additional party to the suit. If such an application is filed, the court below shall permit the petitioner to join the proceedings as additional party.

All pending interlocutory applications will stand closed.