2019 (10) TMI 1277

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..... One Mafaji Motiji Thakor (for short 'MMT'), who is the father and predecessor in-interest of respondent nos. 2(A) to 2(D), was the owner of the suit land. He had executed a power of attorney in favour of respondent no. 3, Avnish Raman Lal (for short 'ARL'). It is alleged that on 29.01.2005, ARL exercising his power under the power of attorney, sold the land to Pruthvirajsinh Nodhubha Jadeja (deceased), predecessor-in-interest of the appellants herein. MMT filed a civil suit (No.89 of 2006) against the predecessor in interest of the appellants and ARL herein challenging this sale. One of the grounds raised was that no power to sell the property had been vested in favour of ARL in terms of the power of attorney executed by MMT. It appears t....

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....ers of the courts below, to unconditionally withdraw the Civil Suit No.89 of 2006. 4. The trial court dismissed the application filed by JCS for impleadment holding that he was not a necessary or proper party and that fresh cause of action arose in his favour and he could file a separate suit. JCS thereafter filed a petition under Article 227 of the Constitution before the High Court, which was allowed by the High Court mainly on the ground that even if the legal heirs of MMT wanted to withdraw from the suit, they could do so but the rights of JCS, would be vitally affected. Therefore, JCS was entitled to be impleaded as a party in the suit. 5. Shri D.N. Ray, learned counsel for the appellants, submits that in a case like this the sub....

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....f Maharashtra, as applicable in the State of Gujarat, every claim for lis pendens has to be registered. He urges that MMT had not registered the lis pendens and further, in the sale deed, undertook that there are no legal proceedings pending with regard to the suit land. Therefore, JCS is the purchaser for bona fide consideration. 7. According to us, the application was wrongly filed under Order I Rule 10 CPC and it should have been filed Order XXII Rule 10 CPC which reads thus: "ORDER XXII : DEATH, MARRIAGE AND INSOLVENCY OF PARTIES xxx xxx xxx 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 s....