1. Petitioner sought to be impleaded in a suit and against the order refusing her prayer he now files this petition.
2. Petitioner had a money decree against a joint Hindu family represented by two minors.
3. In execution she attached all the property of the family and was proceeding to bring it to sale, when the grandmother of the said minors filed the present suit for maintenance of Rs. 10 per mensem and Rs. 300 arrears. As usual she claimed a charge on all the family property, which, as I have said at the date of suit, had been attached by the petitioner and was about to be brought to sale.
4. The guardian of minors averted the Court sale by conveying to the petitioner six items of the property. Petitioner then applied to be brought on the record in the present suit, in order to defend the said property which she had purchased from the anticipated charge claimed by the plaintiff. The lower Court rejected her petition on the ground that the sale to the petitioner was pendente lite. Against that order the petitioner has filed this revision petition. I think this petition must succeed. I think the petitioner was a proper party to the suit since at the time the suit was filed the property which the plaintiff in the suit sought to be made the subject of charge was under attachment at the instance of this petitioner and it is obviously just and convenient to decide in this suit whether the plaintiff's right shall override this petitioner's rights.
5. It is argued that Section 115 of the Civil Procedure Code, cannot be invoked to revise an order refusing to add a party and the ruling in Murugappa Chettiar v L.K.S. Firm : AIR1926Mad135 is invoked in aid of that argument. That case was decided on the ground that the addition of a party under Order I, Rule 10, is ordinarily a matter within the discretion of the Court trying the suit and an erroneous exercise of discretion in a matter of procedure should not be regarded as something done illegally in the exercise of the Court's jurisdiction.
6. This is a case where the trial Court thought that the present petitioner was an unnecessary party and with all respect to the learned Judge who decided the case just cited; I think an order under Order 1, Rule 10, can be revised when the Court fails to exercise a discretion vested in it and when its failure was due to error. Here the error is the omission to take into account the fact that the attachment of the property by this petitioner subsisted when the suit was filed.
7. The petition is allowed with costs both here and in the lower Court.