Given points are not sufficient. Details and pleadings etc are required.
I would like to have from this best forum "paragraph on argument" on below. 1) Order 1 Rule 10 cpc is under title "Parties to Suit" . (CPC) 2) Execution proceeding is not continuation of Suit (SC) 3) Order 1 Rule 10 has no application in Execution Proceeding (HC) 4) Therefore, the Application filed by TP under O 1 RULE 10 to impleadment in EP is not maintainable. 5) t is admitted position by TP that he has filed application under 1 Rule 10. 6) prayer to dismiss the application on the point of Law 7) if Court concludes that application is maintainable then allow Applicant to argue on facts. ALL above is argued before EC in above sequence, still the argument did not impress the Judge. It appears that the judge needs more in argument. The Court has adjourned the date yesterday and ask me to elaborate more on "How order 1 Rule 10 cpc can not apply in other matters apart from "Suits". Therefore I request this forum to draft a short para to satisfy the Court so that I can prove my above submissions from 1 to 7.
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1) Execution petition:- In. Changanti Lakhmi Rajyam and others Vs., Kolla Rama Rao reported in 1998(1) ALD 497 the Division Bench of Hon'ble A.P., High Court held that Order 1 Rule 10 C.P.C., is applicable to suits and appeals and not applicable to the execution proceedings.
2) So far as execution application is concerned, the right accrues to a litigant on the date of filing on the execution application. An execution application is not continuation of suit. It is separate from and independent of a suit. Normally a decree or order becomes enforceable from its date.
3) Rule 10 of order 1 C.P.C. provides remedy when a suit is filed in the name of the wrong plaintiff and empowers the court to strike out any party improperly joined or to implead a necessary party at any stage of the proceedings. of the suit itself would change, the impleadment was not required.
You need to demonstrate the same what you have stated above. For more details we need to study you case in detail
Dear Client,
Firstly, the positioning of Order 1 Rule 10 CPC within the titled section "Parties to Suit" inherently denotes its intended scope, primarily pertaining to suits. This classification underscores the distinctiveness of the legal context in which this provision operates.
Additionally, it is firmly established by the apex court that execution proceedings do not constitute a mere continuation of the original suit. The explicit divergence in the nature, purpose, and procedural course of execution proceedings vis-à-vis a suit serves as the foundation for this principle, as recognized by the Supreme Court.
In consonance with this legal tenet, it becomes pivotal to analyze the applicability of Order 1 Rule 10 CPC within the context of execution proceedings. The High Court's stance, as articulated, aligns with the principle that Order 1 Rule 10 is intrinsically tailored to the dynamics of a suit and does not seamlessly extend its ambit to execution proceedings.
This pivotal standpoint informs the critical contention that an application filed by a third party under Order 1 Rule 10 CPC for impleadment in execution proceedings is inherently devoid of merit. The contours of Order 1 Rule 10's jurisdiction are distinctly circumscribed by its contextual alignment with suits, thereby precluding its transposition to execution proceedings.
Moreover, the acknowledgment by the third party applicant (TP) that the application was indeed filed under Order 1 Rule 10 fortifies the argument. The court is respectfully urged to recognize the inherent limitation of this provision's applicability outside the sphere of suits, rendering the present application legally unsustainable.
Therefore, with a respectful submission to the court's discernment, the present application is fervently prayed to be dismissed on the basis of the law as expounded. It is asserted that the argument, albeit concise, delineates a comprehensive legal framework that harmonizes Order 1 Rule 10 CPC, the distinctiveness of execution proceedings, and the nuanced boundaries of jurisdiction.
However, with due deference to the court's directive, should it incline towards the possibility of the application's maintainability, the applicant implores for the opportunity to present detailed factual contentions. The current presentation seeks to establish the legal foundation upon which the subsequent factual narrative would be superimposed.
In summation, the intricate web of legal principles and provisions meticulously woven from 1 to 7 forms a cohesive fabric that illuminates the limitations of Order 1 Rule 10 CPC within the realm of execution proceedings. It is sincerely hoped that the elucidation provided herein resonates with the court's quest for a comprehensive exposition and serves to navigate the legal discourse in a direction that aligns with the dictates of justice.
Madreas High court in the cae of Thiagarajar Polytechnic vs C.Rajaveeran on 22 March, 2011 has stated in the 12th paragraph tht in the present case, we are faced with only an application for impleadment in an execution proceedings. Therefore, this Court is required to examine whether such impleadment application in the light of the provision of Order 1, Rule 10 CPC and to see whether the petitioner herein is a proper and necessary party to execution proceedings. While examining such application, the Court is given ample discretion to consider as to whether the party seeking impleadment is a necessary party.
Also stated that
It is seen that the Executing Court in the impugned order has not dealt with any of the contentions raised by the petitioner and rejected the same by cryptic and non-speaking order. Therefore, this Court is fully satisfied that the order passed by the Executing Court deserves to be interfered.
15. In the light of the above discussion, it is held that the petitioner is a proper and necessary party to the Executing Court in the light of the fact that the first respondent/land owner has made a claim in the execution petition under the head equitable compensation which according to the petitioner did not form part of the decree passed by the Reference Court as confirmed by this Court.
Therefore, the order passed by the Executing Court is set aside and the Executing Court is directed to implead the petitioner herein as the second respondent in the execution petition, afforded an opportunity to the petitioner to file their counter affidavit to the execution petition and decide the matter on merits and in accordance with law. It is made clear that this Court has decided the question regarding impleadment alone and has not gone into question as regards the first respondent's entitlement for compensation under the head 'equitable compensation, which shall be decided by the Executing Court on merits and in accordance with law.
The principles governing the power of the court under Order 1, Rule 10 of CPC, are that as a rule, the court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the “dominus litus”. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief.
The theory of dominus litus should not be overstretched in the matter of impleading of parties, because it is the duty of the court to ensure that if for deciding the real matter in dispute, a person is a necessary party, the court can order such person to be impleaded. Merely because the plaintiff does not choose to implead a person is not sufficient for rejection of an application for being impleaded.
the Executing Court by invoking the power Order 1 Rule 10 CPC is entitled to add or delete the parties to any of the proceedings and such proceedings shall include the execution proceedings.
This has been confirmed by Rajasthan high court in (2012) 08 RAJ CK 0176
in Ritesh Shukla Vs. Shanta devi in Case No : Civil Writ Petition No. 3846 of 2010.
In view of various judgments by various high court, it can be concluded that the Executing court can entertain the petition under order 1 rule 10 CPC
"Whether Order 1 Rule 10 CPC will be a Pure Question of law" ? .............In view of (1) admitted fact before Court by TP that application is filed under Order 1 Rule 10 (2) Application is filed in Execution proceeding while provision is for parties to the suit (3) Execution proceeding is not continuation of Suit as held by SC.
In a judgment by supreme court of India in CIVIL APPEAL NOS. 1659-1660 of 2021 (@ SPECIAL LEAVE TO APPEAL NOS. 7965-7966/2020) RAHUL S SHAH Vs. JINENDRA KUMAR GANDHI, it ws observed among other things that :
Having considered the above mentioned legal complexities, the large pendency of execution proceedings and the large number of instances of abuse of process of execution, we are of the opinion that to avoid controversies and multiple issues of a very vexed question emanating from the rights claimed by third parties, the Court must play an active role in deciding all such related issues to the subject matter during adjudication of the suit itself and ensure that a clear, unambiguous, and executable decree is passed in any suit.
Therefore it is up to the court to decide on the subject based on the question of law in the case before it
Dear Client,
The court will need to consider the following factors in deciding whether to implead the TP under Order 1 Rule 10 CPC:
Whether the TP is a necessary party to the execution proceedings.
Whether the TP's presence is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the execution proceedings.
Whether the TP's presence would cause any prejudice to any of the parties.
If the court finds that the TP is a necessary party to the execution proceedings and that their presence is necessary in order to effectively and completely adjudicate upon and settle all the questions involved in the execution proceedings, then the court will likely implead the TP under Order 1 Rule 10 CPC. However, if the court finds that the TP's presence would cause any prejudice to any of the parties, then the court may refuse to implead the TP.
Ultimately, the decision of whether to implead the TP under Order 1 Rule 10 CPC is a matter for the court to decide on a case-by-case basis.