Your filing should include:

1. Application under O 9 R 13 (to set aside ex-parte decree)

2. Application under O 1 R 10(2) (to implead you)

3. Affidavit with evidence of second son’s signature on 2010 sale deed

4. Application under Section 151 CPC as backup

5. Interim application to stay final decree proceedings

If the judge rejects everything, appeal immediately, do not waste months.

Yes they will take but you can also file application seeking perjury action against them in same court 

Oder 1 Rule 10 CPC: Grants courts power to add or strike out parties at any stage to ensure all questions are effectually and completely settled.

2) you are formal, necessary party to the suit 

3) If a necessary party was fraudulently omitted or if subsequent events necessitate their inclusion, courts may use inherent powers to add them, ensuring justice and preventing multiplicity of suits,

Based on your situation, you still have strong legal remedies available. The ex-parte preliminary decree obtained by the grandchildren does not bind you because you were a necessary party and were deliberately excluded from the suit. Since you purchased the land in 2010 from all four Class-1 heirs, the property rights had already transferred, and any later suit affecting that property required your inclusion.

The grandchildren had no independent right to file a partition suit while their father (the original heir) is alive. Their claim itself is defective. Additionally, the suit contains clear fraudulent elements — such as deliberately stating the second son died before the grandfather, excluding the daughter without legal basis, and omitting you despite your registered ownership. Any decree obtained through suppression and fraud can be challenged and set aside.

Importantly, a bona-fide purchaser prior to the filing of the partition suit is considered a necessary and proper party. A decree passed without joining such a party is not enforceable against that person. Courts have repeatedly held that such decrees are voidable.

Since the case is still in the final decree stage, you do not need to rush to the High Court immediately. You can take action directly in the trial court by filing:

1. An application under Order 9 Rule 13 CPC to set aside the ex-parte decree on the grounds of fraud and suppression of necessary parties.

2. An application under Order 1 Rule 10(2) CPC requesting the court to implead you as a necessary party. Courts allow impleadment even after a preliminary decree if final decree proceedings are pending.

3. An application under Section 151 CPC requesting the court to stay further proceedings and recall the decree because of fraud and misrepresentation.

Once these applications are filed, you should also request an immediate stay on final decree execution and mutation proceedings, so your rights are protected while the court reopens the matter.

If the trial court refuses, insist on a written judicial order. Do not rely on oral statements from staff or clerks. With a written rejection, you can then approach the District Judge in revision or the High Court to challenge the refusal. However, in most cases like yours, trial courts allow impleadment because the fraud is obvious and the rights of the purchaser would be severely affected otherwise.

To proceed, your next steps should be:

Obtain certified copies of the case documents (plaint, evidence, preliminary decree, genealogical affidavit, and mutation).

File the three applications mentioned above.

Submit documents proving your valid purchase and proof showing the false statements made in the suit.

You have a strong legal position. The decree obtained without your participation is not enforceable against you, and the law supports setting it aside. With proper filings, you can protect your ownership.

If you need help drafting the applications or supervising strategy, I can assist.If you wish to contact us, you may do so on https://qrco.de/syslaw

You have two options, one is to file a petition under order 1 Rule 10 to implead yourself  in the suit by filing an application to set aside the preliminary decree, being the purchaser and necessary party, once the exparte preliminary decree is set aside you can contest the suit and get it dismissed.

The second option is to file an appeal against the preliminary decree by getting yourself impleaded as necessary party to the suit.

You cannot approach high court directly if you were not a party to the suit in the trial court.

Moreover what is the reason that you will approach high court for?

The bench clerk is not an authority.

You can file the petition to implead you as a necessary party to the suit by filing an application under order 1 rule 10 and also to set aside the exparte decree (if it wa an exparte decree).

If the suit was filed in the district court then the appellate court is high court only, in that case you can file an appeal before high court, however in the given situation the remedy is before the trial court itself. 

Don’t go by advice of bench clerks 

make an application for impleadment as necessary party 

if application is rejected then go to HC 

Impleadment is usually entertained up until the final decree, as the preliminary decree is not the absolute end of the matter, but rather a step towards it.

Yes it will be filed in trial court as submitted above

You are taking the correct steps by preparing applications under Order 1 Rule 10(2) (impleadment) and Order 9 Rule 13 (setting aside the ex-parte preliminary decree). Despite what the bench clerks told you, there is no legal bar preventing the trial court from hearing these applications at this stage. Since the final decree has not yet been passed, the trial court still has full jurisdiction to reopen the matter.

A decree obtained by fraud is never final. The law is clear:

“Fraud vitiates everything.”

— A.V. Papayya Sastry v. Govt. of A.P., (2007) 4 SCC 221

A decree passed without joining a necessary and affected party is considered null and void against that person. Since you purchased the land in 2010 and hold a registered title, the decree cannot legally bind you.

You are right that:

• The grandsons cannot file for partition when their father (a Class-I heir) is alive.
• The second son’s date of death was falsely shown.
• The daughter was omitted without her written relinquishment.
• You, as a purchaser, were deliberately excluded to obtain a favourable decree.

These are clear elements of fraud and collusion.

You asked whether there are other remedies. You may additionally file:

• An application under Section 151 CPC requesting the trial court to stay further final decree proceedings because your rights will be irreversibly harmed.
• A petition under Order 20 Rule 18 objecting to passing the final decree without hearing all affected parties.

Once you file all three applications together, request the judge to:

• Take up the matter personally,
• Record your presence in court proceedings, and
• Stay execution or mutation until impleadment is decided.

Do not rely on oral advice from clerks. File the applications and insist on a judicial order. Even if the judge rejects your impleadment, the rejection must be in writing — this written order is what allows you to move to the High Court if needed.

If you are forced to approach the High Court, the relief you should seek is:

1. A direction permitting your impleadment in the pending trial.
2. A stay of the final decree proceedings until impleadment is decided.
3. An order declaring that the ex-parte decree shall not bind you as a bona-fide purchaser.

You do not need to request dismissal of the entire suit at this stage. Once you are impleaded, the case can be reopened and reheard, and during that process the fraudulent nature of the decree will become clear to the court.

Given the facts, your case is strong. Courts protect bona fide purchasers, especially when fraud and suppression are involved. The trial court can still allow your impleadment and set aside the decree.

It is advisable to continue with these applications in the trial court first, as this is faster and less expensive than filing directly in the High Court. If the court refuses, the High Court will intervene because excluding you from the suit violates natural justice.

Mumbai International Airport Pvt. Ltd vs Regency Convention Centra & Hotels & Ors on 6 July, 2010

Equivalent citations: AIR 2010 SUPREME COURT 3109, 2010 AIR SCW 4222, (2010) 93 ALLINDCAS 173 (SC), 2010 (5) AIR BOM R 63, 2010 (3) AIR KANT HCR 698, (2013) 3 CPR 647, (2010) 4 RECCIVR 551, (2010) 6 SCALE 273, (2010) 2 WLC(SC)CVL 207, (2010) 3 ALL RENTCAS 686, (2010) 3 CURCC 335, (2010) 7 MAD LJ 153, (2010) 5 MAD LW 116, 2010 (7) SCC 417, (2010) 5 ANDHLD 24, (2010) 4 ICC 611, (2011) 1 UC 735, (2010) 2 CLR 294 (SC), (2010) 82 ALL LR 229, (2010) 4 CIVILCOURTC 295, (2010) 3 GUJ LH 281, (2010) 111 REVDEC 189, (2010) 4 BOM CR 638

a suit is subject to dismissal if a necessary party is not included.

2) 

Madras High Court

L. Suresh vs Yasothammal ...Plaintiff/1St on 11 October, 2013

If the parties are proper parties, they need not be impleaded. But if the parties who are necessary to the adjudication of the issue between the parties are not included, then the suit has to fail in entirety. In 100 L.W. 486 [Ramachandra Pillai v. Valliammal (died)] a Division Bench of this Court has held that failure to implead all the sharers in a partition suit will result in suit being dismissed for non-joinder. The proviso to the above said provision mandates the impleading of necessary parties to the suit and in default the suit shall fail. The operative portion of the above citation is as follows:

"Though O.1., R.9, of the Code of Civil Procedure provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so fa as regards the rights and interest of parties actually before it, there is a provisio which says that nothing in that rule will apply to non-joinder of necessary parties. In a suit for general partition, there could be no doubt that all the shares are necessary parties as mentioned above. Apart from this, the main part of R.9, is only an enabling provision and the Court shall deal with each case with reference to the particular facts in that case."

"The decision in 1965 S.C.271 [Kanakarathnammal v. Loganatha] is authorised for the position that in a suit for partition, all the shares are necessary parties and also for the position that the suit is liable to be dismissed for non-joinder of any one of the parties in T.Panchapakesan and others v. Peria Thambi Naicker and others [85-L.W.84 (D.B)] also, a Division Bench of this Court has taken a similar view. We are accordingly of the view that the finding of the learned Subordinate Judge on issue No.10 holding that the suit is not bad for non-joinder of Nagarathinam's heirs is unsound and liable to b

1. File in trial court now (same partition suit):

   • Application under Order 1 Rule 10(2) CPC to implead yourself as a necessary party (prior purchaser).

   • Ask to set aside/modify the ex parte preliminary decree and draw a fresh preliminary decree including you and all Class‑1 heirs, relying on Phoolchand v. Gopal Lal, 1967 (second preliminary decree permissible in partition suits).​

2. Cite only 3 main authorities in your application:

   • Vidur Impex & Traders Pvt. Ltd. v. Tosh Apartments Pvt. Ltd., (2012) 8 SCC 384 – purchaser whose rights are affected is a necessary party; impleadment under O1 R10(2) at any stage.​

   • Moreshar Yadaorao Mahajan v. Vyankatesh Sitaram Bhedi, SC 2022 – if a necessary party is not impleaded, the suit is liable to be dismissed.​

   • Phoolchand v. Gopal Lal, 1967 AIR 1470 – court can pass a second preliminary decree when new necessary parties/shares are discovered.​

3. Only if trial court rejects impleadment / modification, go to High Court in revision/Art. 227, challenging that refusal and seeking stay of final decree.

- First of all you should move the application before the same court for setting aside the ex-parte  with the applicaton of order 1 rule 10 CPC. 

In a partition suit, all co-owners or co-sharers are ordinary necessary parties.

Further, a purchaser of a portion of the suit property (or purchaser from coparcener) may also qualify as a necessary party.
A “necessary party” is one whose presence is indispensable; in his absence no effective decree can be passed. If such a party is not impleaded, the suit may be liable to be dismissed.
Hence, if you purchased the land (in 2010), you may properly claim to be a necessary party to any partition proceeding concerning that land.
In several judgments, courts have held that under Order I Rule 10 CPC, a necessary party can be added “at any stage of the proceedings, either upon or without application of either party.”
Specifically in partition suits, the power to implead remains until the “final decree” is passed; mere passing of preliminary decree does not oust that power.
In : Lakhmichand Rewachand v. Kachubhai Gulabchand (Bombay High Court, 1911) — at a stage when the suit had reached commission to divide the property, the Court under Order I Rule 10 added the applicant (a sharer) as defendant even though the suit was pending for partition.
Also, in Ch. Yashoda Devi v. B. Dayakar Reddy (High Court case) — after preliminary decree, the court allowed impleadment under Order I Rule 10, for “effectual adjudication and justice” and to avoid multiplicity of proceedings.

You need to stay the said decree immediately from court by filing a suit or appeal. Without court order no agency will abide to the same

Dear Client, 

For being a necessary party, the Court observed that the twin test needs to be satisfied- there must be a right to some relief against such party in respect of the controversies involved in the proceedings. No effective decree can be passed in the absence of such a party. [Moreshar Yadaorao Mahajan v. Vyankatesh Sitaram Bhedi (D) Thr. LRs. and Others] Focusing on your position, since you are a purchaser, you will be a necessary party for a suit on a petition relating to that property as it affects your interest. A suit without a necessary party is technically liable for dismissal. No effective decree can be passed in the absence of a necessary party. The issue is that there are varying decisions of the High Courts on impleadment after a preliminary decree. Order 1 Rule 10 CPC: A provision that allows the court to add or remove parties to a suit at any point to ensure a comprehensive and effective resolution of all issues. The case that favors your position is Kumari vs Huned, on 9 December 2011, which held that there is no legal embargo on adding parties after the preliminary stage. The Gujarat HC recognized that the suit for partition ends with a final decree, not a preliminary decree. However, there is a condition: "However, what is important is that impleadment of additional parties subsequent to the passing of the preliminary decree is permissible only if none of the questions already settled by the preliminary decree are not to be reopened by the Court as a consequence of such impleadment. The addition of parties can be allowed at that stage only on condition that the further proceedings to be taken in the suit will be only on the basis of the preliminary decree already passed and none of the questions settled by the preliminary decree will be allowed to be reagitated on the ground that the person newly impleaded was not before the Court at the time of the passing of the preliminary decree."

You must meet an advocate and see how you can work around this. I hope this answer helps you. For any further queries, please do not hesitate to contact us. Thank you.