In absence of relevant facts it is difficult to reply such bald queries on pretext of question of law. In general, the executing court does not have power to go into re-examination of facts, nor has power to re-examine merit of the case or to modify or amended the decree.
Pure question of law (5 days before)
I had posted 5 days before a query under subject "Pure Question of Law". Below post is a continuation of that post. BRIEF: 1. To add a TP in Execution proceeding is barred under Order 1 Rule 10 cpc. 2. Even assuming that TP is necessary party then he has remedy to file objection under O 21 Rule 58 (2) CPC , subject to his direct interest /Right and Title in the Suit Property. QUERY : Whether Executing Court can invoke his discretionary power to allow the application of TP, filed under Order 1 Rule 10 CPC, and modify the cause title of Decree unless which adding of the name of TP is not possible ?
Asked 1 year ago in Civil Law
8 Answers
Rule 10 specifically provides that it is open to the Court to add at any stage of the suit
a necessary party or a person whose presence before the Court may be necessary in
order to enable the Court to effectually and completely adjudicate upon and settle all
the questions involved in the suit.
2)The power to add third parties is discretionary, but has to be exercised in
a judicial manner governed by rule, legal and regular but not be arbitrary,
vague and fanciful. If the application is not bonafide and is dilatory and
vexatious, it cannot be allowed.
3) only Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.
If the court is satisfied by the genuineness of the case before it then the executing court can pass an order within the framework of the law to allow the application filed by the third party to implead him/her as a necessary party to the ongoing execution proceedings.
Received 3 replies. But my query was different. I understand that "To add or delete any person under Order 1 Rule 10 is a discretionary power of Court" but what Court should see first before applying discretionary power vested, .........whether the application itself maintainable or not under a particular provision OR ignoring pure question of law for maintainability of the application when raised by opposite party, the Court will allow the application only the TP is necessary party ACCORDING to other advisers: The Court will determine the pure question of law firstly and if the application is maintainable then the Court will determine the whether third party is necessary on the basis of merits of the facts by giving equal opportunity to all parties. In any case Court has to determine pure question of law, which does not rely on facts. Please comment as the EC has posted tomorrow's date for argument and Order (I have raised the pure question of Law in my EP) Regards
Asked 1 year ago
court will consider whether application is maintainable or not
then only decide whether to allow application or not
The court will reject or admit the application on above point of law if not then reject the same
Dear Client,
The Executing Court has the discretionary power to allow the application of a third party (TP) to be impleaded in an execution proceeding under Order 1 Rule 10 of the Code of Civil Procedure (CPC). However, whether the application is maintainable in the first place is a pure question of law that the Court must first determine.
The Supreme Court has held that the Court must first determine the maintainability of the application before exercising its discretion to allow it. In the case of Smt. Sushila Devi vs. Smt. Nirmala Devi, the Court held that "the question whether the application is maintainable under Order 1 Rule 10 CPC is a pure question of law which does not depend upon the facts of the case and the Court must decide it before exercising its discretion under the said provision."
In your case, the opposing party has raised a pure question of law as to whether the application of the TP is maintainable under Order 1 Rule 10 CPC. The Executing Court must first determine this question before considering whether the TP is a necessary party.
If the Court finds that the application is maintainable, it will then have to consider whether the TP is a necessary party. A necessary party is a person whose presence in the suit is essential for the adjudication of the matter. In other words, the absence of the TP would make it impossible for the Court to decide the case.
In the case you have mentioned, the Executing Court may allow the application of the TP and modify the cause title of the decree if it is satisfied that the TP has an interest in the subject matter of the decree and that such joinder is necessary for the just and effective execution of the decree.
The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined
The principles governing the power of the court under Order 1, Rule 10 of C.P.C., 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”.