S. PARVATHA RAO, J.

( 1 ) THE petitioner questions the order of the learned Principal Subordinate judge at Anantapur in I. A. No. 740 of 1987 in O. S. No. 189 of, 1983 dt. 26-l0-1992 rejecting the application made under Rule 10 of Order 1 of the Civil Procedure code for impleading respondents 2 to 4 herein as defendants 2 to 4 in the said suit O. S. No. 189 of 1983. The said suit was filed by the petitioner herein against the 1st respondent herein for specific performance of an agreement of sale dated 9-6-1983 said to have been executed by the 1st respondent in his favour. The said suit was instituted on 29-9-1983.

( 2 ) THE reasons for presenting IA. No. 740 of 1987 were given by the petitioner in his affidavit in support of the said IA. in the following manner: The 1st respondent herein entered into a partition with respondents 2 to 4 in respect of the property which is the subject matter of the suit agreement. According to him, there cannot be any joint family among Muslims and the partition deed was executed deliberately with a view to get over the suit agreement Under these circumstances, the petitioner sought to implead respondents 2 to 4 as necessary parties to the suit. In the said I. A. the petitioner also sought amendment of his plaint in the said suit by introducing the following paragraph:"defendants 2 to 4 along with the 1st defendant who is the wife of the 2nd defendant and who is the mother of defendants 3 and 4 have fraudulently and designedly brought a nominal document calling it as deed of partition purporting to divide the suit property into four equal shares. There cannot be any joint family property and there cannot be any partition among muslims. It is the exclusive property of the 1st defendant and the alleged partition arrangement does not confer any right upon the defendants 2 to 4. However, by way of abundant caution, the plaintiff is adviced to implead the defendants 2 to 4. In the said circumstances, defendants 2 to 4 are bound to join in the execution of the sale deed to be executed by the defendant. "the petitioner also sought an amendment of the reliefs portion of the plaint by including the following reliefs:"and direct the defendants 2 to 4 to join in the execution of the sale deed to be executed by the defendant and substitute the defendant No. 1 for the defendant in its place. "the petitioner herein described these amendments as consequential amendments.

( 3 ) THE 1st respondent herein opposed the said application contenting that the partition deed was valid and binding and that the petitioner had no right to question the same and that the partition was not fictitious and that therefore the application was liable to be dismissed.

( 4 ) THOUGH the application was filed by the petitioner herein under Rule 10 of Order 1 of the C. P. C. a reading of the order of the learned Subordinate Judge dated 26-10-1992 gives an impression that he treated it more as an application under Rule 17 of Order 6 i. e, for amendment of the plaint. I am of the view that the learned Subordinate Judge is not right in treating it as an application for amendment of the plaint. That the learned Subordinate Judge treated the application of the petitioner herein as one for amendment of the plaint under order 6 Rule 17of the Civil Procedure Code is obvious from the only paragraph at the end of his order wherein he considered the matter and held that it was very well settled law that an amendment must be refused when it was sought beyond the statutory period fixed for the original cause of action and dismissed the application as belated "on the point of limitation. "

( 5 ) I am of the view that the learned Subordinate Judge is not right in rejecting the application for impleading respondents 2 to 4 as defendants 2 to 4 in the suit treating the application as one for amendment of the plaint under Rule 17 of order 6 of the Civil Procedure Code. The case law relied upon by the learned subordinate Judge related to amendments of

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