Deletion Under Order 1 Rule 10 CPC Not Akin To Withdrawal Of Suit; Deleted Pendente Lite Purchaser Remains Bound By Decree: Bombay HC

The Bombay High Court has held that deletion of a defendant under Order 1 Rule 10 of the CPC is not equivalent to withdrawal of a suit against that defendant. The Court observed that a purchaser pendente lite continues to be bound by the decree and cannot avoid its consequences merely because his name was deleted from the suit.

Justice Ajit B. Kadethankar was hearing a writ petition filed by a decree-holder challenging the order of the executing court rejecting his application seeking possession against a purchaser pendente lite. The petitioner had obtained a decree for possession in respect of the suit property, and during the pendency of the suit, respondent No.7 had purchased a portion of the property from the original defendant. The respondent was initially added as a party but was later deleted from the suit under Order 1 Rule 10 CPC. In execution proceedings, the petitioner sought directions against the said respondent for handing over possession, which was rejected on the ground that he was not a party to the decree.

The Court examined the distinction between the deletion of a party and the withdrawal of a suit. It held that the deletion of a defendant under Order 1 Rule 10 is based on the necessity or propriety of that party's presence in the suit and does not amount to abandonment of the claim against such defendant. It observed that withdrawal of a suit under Order 23 Rule 1 results in abandonment of the claim, whereas deletion of a party does not have such a consequence.

“'Order 1 Rule 10' and 'Order 23 Rule 1' are not at par as regards to the rights “of or against” a party sought to be placed out of the suit proceedings. Both provisions operate with absolutely different objects, in different circumstances, and with different consequences,” the Court observed.

The Court further noted that the respondent had purchased the property during the pendency of the suit and therefore his rights were governed by Section 52 of the Transfer of Property Act. It held that such a purchaser derives title through the original defendant and is bound by the decree passed against the vendor.

The Court observed that the executing court erred in treating the deletion of the respondent as a withdrawal of the suit against him and in concluding that he was not bound by the decree. It held that the respondent, being a purchaser pendente lite, falls within the expression “any person bound by the decree” under Order 21 Rule 35 CPC.

The Court also held that Section 146 CPC permits proceedings to be taken against persons claiming under a party to the suit, and therefore execution could be pursued against such purchaser.

Accordingly, the High Court allowed the writ petition, quashed the impugned order dated 19.08.2024 passed by the executing court, allowed the petitioner's application seeking possession against the respondent, and directed the executing court to proceed with the execution proceedings expeditiously.

Case Title: Kashinath Ramji Shinde vs. Pradip & Ors. [Writ Petition No. 12195 of 2024]

Case Title: 2026 LiveLaw (Bom) 211

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