Sanjay Kumar Nagalia vs Sm Milkose Limited
2022 Latest Caselaw 1380 UK

     HIGH COURT OF UTTARAKHAND AT NAINITAL

                Writ Petition (M/S) No. 2976 of 2018

Sanjay Kumar Nagalia                                            .....Petitioner.

                                       Versus
SM Milkose Limited                                              .... Respondents
Present :
Mr. Ramji Srivastava, Advocate, for the petitioner.
Mr. V.K. Kohli, Senior Advocate, assisted by Mr. I.P. Kohli, Advocate, the respondent.

                                           Judgement Reserved : 15.02.2022
                                          Judgement Delivered : 05.05.2022

                                JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

The petitioner in the present Writ Petition, is a plaintiff in Suit No. 45 of 2013, Sanjay Kumar Nagalia Vs. ZX Sources Pvt. Ltd., which has been instituted before the Court of Additional Civil Judge (Senior Division), Dehradun, for grant of a decree of declaration and permanent injunction, as against the defendants, who have been impleaded therein.

2. The brief facts, which engaged consideration in the said case was, that the property, which constituted as to be the subject matter of the Suit, was the property bearing Municipal No. 220/221 (Old No. 224), Rajpur Road, Dehradun, measuring 4.37 bighas, (hereinafter, to be called as the property in dispute).

3. The property initially formed to be the property of the joint Hindu family, which comprised of Mahendra

Kumar, the father of the petitioner, who was the Karta of the family, Rajiv Nagalia, the brother of the petitioner and the petitioner himself, who were coparceners of the property.

4. It is contended by the petitioner that the property was orally partitioned on 20th November, 2009, and the property was thus settled between the coparceners based upon their exclusive share and possession as per the terms of the oral partition. After the oral partition being carried, there arose certain disputes between the coparceners, which resulted into institution of a Civil Suit, being Suit No. 55 of 2010, Mahendra Kumar Nagalia Vs. Rajiv Nagalia and others, seeking a declaration and grant of decree of permanent injunction. But, however, during the pendency of the said Suit between the coparceners, a compromise was entered into between the parties to the Suit, and the dispute of Suit No. 55 of 2010, was admittedly resolved by way of a compromise which was entered between the coparceners.

5. It was that during the pendency of the said Suit, that taking advantage of the age of the father of the petitioner, who was at the relevant point of time 80 years of age, the respondent, herein, was able to manage and procure an agreement for sale, which was said to have been executed in their favour on 29th August, 2011. However, in this registered agreement for sale, it was stipulated that the sale deed would be ensured to be got executed on or before 28th February, 2012, but, as per the records no sale deed as a consequence thereto was ever got executed by the respondents.

6. However, on 25th November, 2011, the Suit between the coparceners, i.e. Suit No. 55 of 2011, was decided by way of a decree on the basis of the compromise, which became final qua its parties and was inter se binding between the coparceners, of which, Mr. Mahendra Kumar, was the Karta. As a consequence of the aforesaid compromise decree of 25th November, 2021, the petitioner became an exclusive owner of the respective part of the property, as an effect of the judgement of 25th November, 2011. The petitioner with a view to sell the property contends, that he has got a sale deed executed in favour of one M/s ZX Source Pvt. Ltd., which was a sale deed registered on 7th December, 2011, for a sale consideration of Rs.6,30,00,000/-. The purchaser of the property had executed three cheques towards the sale consideration, but however, the said cheques were not honoured by the Bank, because of the information given by the Bank, that there was a direction for "stop payment of the cheques", and further because of the fact, that the sale deed was ultimately found to be deficiently stamped.

7. The petitioner contended that due to the directives given by the proposed purchaser of the property, i.e. M/s ZX Sources Pvt. Ltd., since the cheques were dishonored and the bank had returned the cheque drawn on the branch of HDFC, Branch Preet Vihar, New Delhi, dated 7th December, 2021, with the remark of the Bank that the payment stopped by drawer. The sale deed, which was said to have been executed on 7th December, 2011, according to the petitioner,

was null and void qua the rights of M/s ZX Sources Pvt. Ltd., which was independent dispute altogether.

8. When despite of the aforesaid fact of dishonour of the cheque and due to non payment of the admitted total sale consideration as involved in the sale deed dated 7th December, 2011, when the same was not remitted, the petitioner filed a Suit, being Suit No. 45 of 2013, Sanjay Kumar Nagalia Vs. ZX Sources. In the meantime, when the Suit itself was pending consideration, i.e. Suit No. 45 of 2013, which was a suit for declaration of the sale deed dated 7th December, 2011, as to be null and void, the respondent, herein, i.e. M/s SM Milkose Limited, filed an application, being paper No. 43-C2, under Order 1 Rule 10 of the CPC, claiming themselves to be impleaded in the aforesaid Suit on the basis of the alleged agreement for sale dated 29th August 2011, which was claimed by them to have been executed by the late father of the petitioner.

9. They contended in their application, under Order 1 Rule 10 (2) of the CPC, that under the terms of the agreement for sale dated 29th August, 2011, they would be rather the necessary parties to be impleaded in the Suit No. 45 of 2013, where exclusively a degree of declaration was sought by the petitioner/plaintiff, against the defendant of the said Suit, which was confined to the sale deed of 7th December, 2011. The application being paper number 43-C2, thus filed by the respondent, herein, was contested by the petitioner, by filing an objection to it, being Paper No. 54-C2, wherein, it has been specifically pleaded that there was no

material and crystallized rights, has been created yet in favour of the applicant to the application paper No. 43-C2, under Order 1 Rule 10 of the CPC, apart from the fact that, that for the purposes of declaration of the sale deed dated 7th December, 2011, the proposed applicant to the Impleadment Application, is not a necessary party at all, in whose absence, the Suit No. 45 of 2013, could not be effectively decided on its own merit.

10. But, however, the Court of Civil Judge (Senior Division) by virtue of the impugned order under challenge, i.e. 1st September, 2018, allowed the application paper No. 43-C2 and rejected the objection 54-C2, against which, the present Writ Petition has been filed.

11. The petitioner has submitted, that the aforesaid impugned order dated 1st September, 2018, allowing the impleadment application, would be bad in the eyes of law, for the reason being that the petitioner's right qua the property, in question, stood settled in the Suit, which was Suit No. 55 of 2011, filed on the basis of the oral partition dated 20th November, 2009, which was arrived at as amongst the coparceners of the joint Hindu family property, which was also decided on the basis of the compromise. As a consequential effect of the compromise decree, it is contended by the petitioner that his rights have been crystallized and since the said degree of Suit No. 55 of 2011, has not been put to challenge by any coparcener, no right to the contrary could be derived by the applicant /respondent, herein, to the application under Order 1 Rule 10 (2) of the

CPC, and more particularly, when the degree of compromise and partition of shares between the coparceners have attained its finality, and that too particularly, when in the subsequent Suit, being Suit No. 45 of 2013, in which, the impleadment was sought, only was limited to the subsequent sale deed, which was claimed to have been executed by the petitioner on 7th December, 2011, against the defendant to the Suit, but due to the dishonour of the cheques, which was payable towards the sale consideration, hence, for the purposes of deciding the Suit No. 45 of 2013, the respondents would not have been the necessary party, as they had no right or title whatsoever, based on agreement for sale.

12. The petitioner has submitted, that the intending buyer or the proposed purchaser, who intended to purchase the property by the agreement for sale dated 29th August, 2011, executed by the late father, the agreement for sale in itself will not confer any concluded right in favour of the applicant to the impleadment application, because until and unless, the sale deed was executed and a crystalized and concluded right was created in favour of the proposed purchaser of the agreement for sale dated 29th August, 2011, they would not be necessary parties who would be required to be impleaded in the Suit.

13. This Court is of the view, that this argument as raised by the learned counsel for the petitioner, that merely on the basis of the registered agreement for sale dated 29th August, 2011, since no legal right has been created in relation to the property, in favour of the proposed applicants, they

would not be the necessary party to the Suit No. 45 of 2013, which could be even effectively decided, even without they being impleaded as the party.

14. This Court is of the view, that there is another reason, that the application for impleadment ought to have been rejected, for the reason being that the compromise decree between the coparceners, settling their respective rights in relation to the respective share of property of a joint Hindu family, that has attained finality because the said decree itself has not been put to challenge; by any of the effected coparceners, in that eventuality, any impleadment, which had been sought by the applicant, will have an overriding effect of alleged claim over property, which was a subject matter of a Suit, which was decided on the basis of an oral family partition dated 28th November, 2009.

15. This Court is further of the view, that there is another reason for not to accept the contention which has been raised by the learned counsel for the respondent in the Impleadment Application, whereby, they have claimed that their right to be impleaded was foundationed by virtue of an agreement for sale, it is for the reason, that as per Article 54 to the Schedule, provided under the Limitation Act, it had provided that the Suit for specific performance as contained under entry 54, the period of limitation would be either "the date fixed for the performance, or, if no such date is fixed, when the plaintiff has noticed that performance is refused".

16. The case of the petitioner is that as per the

contents of the alleged agreement for sale, since the date for execution of the sale deed was settled to be executed by 28th February, 2012, and since the period of limitation prescribed under the Schedule, to the Limitation Act, as contained under Article 54, i.e. three years from the date of the execution of the deed or from the date of the knowledge of the execution of the deed, since the Suit for specific performance was not got instituted, no right stood ever created in favour of the respondents, which could have necessitated further for the respondent to be impleaded as party to the Suit.

17. In fact, this Court is am of the view, that if such type of impleadment in a Suit for declaration of sale deed dated 7th December, 2021, if a third party is permitted to be impleaded, who is not at all affected by any consequential degree, which may or is likely to be passed by the learned Trial Court, they would not be the necessary party because their presence in the Suit is not at all required in view of the provisions contained under Order 1 Rule 10 (2) of the CPC.

18. Apart from it, the Court is of the view that it is an admitted position, which has emerged from the facts of the case, that since the agreement for sale, was only allegedly said to have been executed in favour of the applicant, the agreement for sale as per the settled law will, in itself will not grant any right, as such to the applicant to be impleaded in a Suit filed by the petitioner for declaration of the sale deed to be void and thus, allowing of the application for impleadment by the learned Court below suffers from the apparent vices, because any decisions to be rendered in the said Suit will not

at all in any manner prejudice the rights of the applicant at all.

19. The aforesaid reason stands fortified in view of the judgement rendered by the Hon'ble Apex Court, as reported in (2005) 6 SCC 733, Kasturi Vs. Iyyamperumal and others, wherein, the Hon'ble Apex Court, while answering the question about the impact of Order 1 Rule 10 (2) of the CPC, as to who would be the necessary party who would be required to be impleaded in a Suit, the necessary test, which has been provided therein, that there must be a right in favour of an applicant, to some relief against such party in respect of the controversy involved in the Suit or where no effective decree could have been passed in the absence of the party seeking themselves to be impleaded.

20. In fact, the Hon'ble Apex Court has observed in its para 14 and 20 of the said judgement that the issue, where a Suit for specific performance ought to have been filed and which was admittedly not instituted with the period of limitation, and there was no crystallized right created in favour of the applicant, they would not be necessary party at all who would be at all required to be impleaded. Para 15 and 20 of the said judgment is extracted hereunder :-

"15. As discussed hereinearlier, whether Respondents 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of Respondents 1 and 4 to 11 before the court would be necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. As noted hereinearlier, in a suit for

specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant and Respondents 2 and 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. It is an admitted position that Respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted hereinearlier that in the event, Respondents 1 and 4 to 11 are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is not permissible in law. In the case of Vijay Pratap v. Sambhu Saran Sinha this Court had taken the same view which is being taken by us in this judgment as discussed above. This Court in that decision clearly held that to decide the right, title and interest in the suit property of the stranger to the contract is beyond the scope of the suit for specific performance of the contract and the same cannot be turned into a regular title suit. Therefore, in our view, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. As discussed above, in the event any decree is passed against Respondents 2 and 3 and in favour of the appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit, obviously, cannot bind Respondents 1 and 4 to 11. It may also be observed that in the event, the appellant obtains a decree for specific performance of the contracted property against Respondents 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event Respondents 2 and 3 refusing to execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted hereinearlier, since Respondents 1 and 4 to 11 were not parties in the suit for specific performance of a

contract for sale of the contracted property, a decree passed in such a suit shall not bind them and in that case, Respondents 1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of CPC, if they are available to them, or to file an independent suit for declaration of title and possession against the appellant or Respondent 3. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property.

20. It was also argued on behalf of Respondents 1 and 4 to 11 that to avoid multiplicity of suits it would be appropriate to join Respondents 1 and 4 to 11 as party- defendants as the question relating to the possession of the suit property would be finally and effectively settled. In view of our discussions made hereinabove, this argument also which weighed with the two courts below has no substance. In view of the discussions made hereinearlier, the two tests by which a person who is seeking addition in a pending suit for specific performance of the contract for sale must be satisfied. As stated hereinearlier, first, there must be a right to the same relief against a party relating to the same subject-matter involved in the proceedings for specific performance of contract for sale, and secondly, it would not be possible for the court to pass effective decree or order in the absence of such a party. If we apply these two tests in the facts and circumstances of the present case, it would be evident that Respondents 1 and 4 to 11 cannot satisfy the above two tests for determining the question whether a stranger/third party is entitled to be added under Order 1 Rule 10 CPC only on the ground that if the decree for specific performance of the contract for sale is passed in absence of Respondents 1 and 4 to 11, their possession over the contracted property can be disturbed or they can be dispossessed from the contracted property in execution of the decree for specific performance of the contract for sale obtained by the appellant against Respondents 2 and 3. Such being the position, in our view, it was not open to the High Court or the trial court to join other cause of action in the instant suit for specific performance of the contract for sale, and

therefore, the two courts below acted illegally and without jurisdiction in allowing the application for addition of parties in the pending suit for specific performance of contract for sale filed at the instance of Respondents 1 and 4 to 11. The learned counsel for Respondents 1 and 4 to 11, however, urged that since the two courts below had exercised their jurisdiction in allowing the application for addition of parties, it was not open to this Court to interfere with such order of the High Court as well as of the trial court. We are unable to accept this contention of the learned counsel for Respondents 1 and 4 to 11. As discussed hereinearlier, it is open to the Court to interfere with the order if it is held that two courts below had acted without jurisdiction or acted illegally and with material irregularity in exercise of their jurisdiction in the matter of allowing the application for addition of parties filed under Order 1 Rule 10 CPC. The question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct interest in the controversy involved in the suit. Can it be said that Respondents 1 and 4 to 11 had any direct interest in the subject-matter of the instant suit for specific performance of the contract for sale? In our view Respondents 1 and 4 to 11 had no direct interest in the suit for specific performance because they are not parties to the contract nor do they claim any interest from the parties to the litigation. One more aspect may be considered in this connection. It is that the jurisdiction of the court to add an applicant shall arise only when the court finds that such applicant is either a necessary party or a proper party.."

21. On a plain reading of the expression of the aforesaid ratio, all the questions involved in the Suit, as provided under Order 1 Rule 10 of the CPC, the Legislature in its clear intention meant, that the controversy between the parties to the Suit and not with regard to the stranger, who has got nothing to do, and particularly, under the circumstances of the case at hand, when he was only a person

holding an agreement for sale and the execution of which too was barred by Article 54 of Schedule to the Limitation Act. Besides this, the applicant/respondent who is not a party to the Suit would not be bound by any decree, which, if any, is rendered in the Suit.

22. In yet another judgement rendered by the Hon'ble Apex Court as reported in (2020) 13 SCC 773, Gurmit Singh Bhatia Vs. Kiran Kant Borinson and others, the Hon'ble Apex Court has observed in its para 5.2, which is extracted hereunder :-

"5.2. An identical question came to be considered before this Court in Kasturi and applying the principle that the plaintiff is the dominus litis, in the similar facts and circumstances of the case, this Court observed and held that the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. It is further observed and held by this Court that two tests are to be satisfied for determining the question as to who is a necessary party. The tests are: (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. It is further observed and held that in a suit for specific performance the first test that can be formulated is, to determine whether a party is a necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject-matter involved in the proceedings for specific performance of contract to sell. It is further observed and held by this Court that in a suit for specific performance of the contract, a proper party is a party whose presence is necessary to adjudicate the controversy involved in the suit. It is further observed and held that the parties claiming an independent title and possession adverse to the title of

the vendor and not on the basis of the contract, are not proper parties and if such party is impleaded in the suit, the scope of the suit for specific performance shall be enlarged to a suit for title and possession, which is impermissible. It is further observed and held that a third party or a stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the contracted property or to avoid multiplicity of the suits. It is further observed and held by this Court that a third party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character."

23. That the Impleadment Application by subsequent transferee or the proposed and expected transferee, under an agreement for sale would not be a necessary party in a Suit, particularly, when the Suit for specific performance to sell was not even instituted. The necessary implications of para 5.2 of the aforesaid judgement extracted above is based upon the principle of Kasturi (Supra) referred hereinabove.

24. Hence, under the proposed party, which is claiming to be impleaded as a party to the Suit, has not got any direct and legal interest involved in the controversy in Suit, and that too, when the Suit for specific performance or suit for declaration of a sale deed to be void, the test can be formulated to be determined, whether the party is necessary party or not. It must have a right within itself, against the subject matter of the Suit itself and merely on the basis of an agreement for sale of the property, that in itself will not entitle or confer upon a party to be impleaded and so was the implications laid down by the Hon'ble Apex Court Para 5.3 and 5.4 of the judgement, which is extracted hereunder :-

" 5.3. In paras 15 and 16, this Court observed and held as under: (Kasturi case, SCC pp. 741-42, paras 15-16) "15. As discussed hereinearlier, whether Respondents 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of Respondents 1 and 4 to 11 before the court would be necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. As noted hereinearlier, in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant and Respondents 2 and 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. It is an admitted position that Respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted hereinearlier that in the event, Respondents 1 and 4 to 11 are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is not permissible in law. In Vijay Pratap v. Sambhu Saran Sinha this Court had taken the same view which is being taken by us in this judgment as discussed above. This Court in that decision clearly held that to decide the right, title and interest in the suit property of the stranger to the contract is beyond the scope of the suit for specific performance of the contract and the same cannot be turned into a regular title suit. Therefore, in our view, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. As discussed above, in the event any decree is passed against Respondents 2 and 3 and in favour of

the appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit, obviously, cannot bind Respondents 1 and 4 to 11. It may also be observed that in the event, the appellant obtains a decree for specific performance of the contracted property against Respondents 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event Respondents 2 and 3 refusing to execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted hereinearlier, since Respondents 1 and 4 to 11 were not parties in the suit for specific performance of a contract for sale of the contracted property, a decree passed in such a suit shall not bind them and in that case, Respondents 1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of CPC, if they are available to them, or to file an independent suit for declaration of title and possession against the appellant or Respondent 3. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property.

16. That apart, from a plain reading of the expression used in sub-rule (2) Order 1 Rule 10 CPC "all the questions involved in the suit" it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff-appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff- appellant on one hand and Respondents 2 and 3 and Respondents 1 and 4 to 11 on the other. This addition,

if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale."

That thereafter, after observing and holding as above, this Court in Kasturi further observed that in view of the principle that the plaintiff who has filed a suit for specific performance of the contract to sell is the dominus litis, he cannot be forced to add parties against whom, he does not want to fight unless it is a compulsion of the rule of law.

5.4. In the aforesaid decision in Kasturi, it was contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same and as the plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties including the third parties, and therefore, the same can be settled in the suit itself. It was further submitted on behalf of the third parties that to avoid the multiplicity of the suits, it would be appropriate to join them as party defendants. This Court did not accept the aforesaid submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the party to the contract. It is further observed and held that in a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property."

25. For the aforesaid reasons, and for the reasons already referred above, the Writ Petition deserves to be allowed, the impugned order of allowing the Impleadment Application of the respondent is not sustainable, because no crystallized material right of the applicant was subsisting to be decided by the Suit, nor there was any decree claimed against him, as his period for execution of the sale deed was barred by Article 54 of the Limitation Act, and even till date, when he had filed the Impleadment Application, he was not the necessary party to be impleaded.

26. Thus, the Writ Petition is allowed and the impugned order dated 1st September, 2018, is hereby quashed, the application allowing the Impleadment Application, paper No. 43-C2, is hereby rejected.

(Sharad Kumar Sharma, J.) 05.05.2022 Shiv