ORDER :

1. This civil miscellaneous petition filed by the petitioner is registered as C.M.P. No. 30 of 2021. This is a petition filed under Section 151 of the Code of Civil Procedure, read with Article 227 of the Constitution of India. In this petition, the petitioner has challenged the order dated 19th November, 2019 passed by the Civil Judge Senior Division, Simdega in Misc. Civil Application No. 4 of 2019. The said order was passed by the Civil Judge Senior Division, Simdega in terms of the proviso of Order XXII Rule 5 of the Code of Civil Procedure.

QUESTION FORMULATED FOR DECISION OF THIS CMP

2. A preliminary question, which arises while deciding this civil miscellaneous petition is, whether this petition is maintainable or not. To decide this issue, the following questions needs to be framed:

Whether an order passed by Civil Judge Senior Division in terms of proviso of Order XXII Rule 5 of the Code of Civil Procedure, can be challenged by filing a separate application under Article 227 of the Constitution of India/Section 151 of the Code of Civil Procedure, to be treated as a separate litigation? If the answer is ‘NO’ then what is the remedy available to the parties, who want to challenge the said findings passed by the Judge, who exercised the power and passed the order in terms of Order XXII Rule 5 of the Code of Civil Procedure?

FACTS GIVING RISE TO THIS PETITION

3. To deal with the aforesaid issue, it is necessary to give brief facts of this case, which gives rise to this litigation:

(a) Petitioner, in this civil miscellaneous petition, were the plaintiffs in Title Suit No. 23 of 1979/3 of 1984. The said title suit was dismissed by the Additional Sub Judge, Gumla vide judgment dated 12.04.1985. Aggrieved by the said judgment, petitioners herein preferred an appeal under Section 96 of the Code of Civil Procedure before the First Appellate Court. The First Appellate Court also dismissed the appeal. These petitioners, who were the appellants before the First Appellate Court, challenged the said judgment again by filing an appeal under Section 100 of the Code of Civil Procedure. The said appeal (Second Appeal) filed under Section 100 of the Code of Civil Procedure is still pending before this Court and is numbered as Second Appeal No. 542 of 2003.

(b) During pendency of the aforesaid second appeal, two interlocutory applications have been filed. One interlocutory application being I.A. No. 2861 of 2017 was filed for substitution of deceased-respondent No. 1, namely, Most. Beronica Khariain, who died on 13.01.2017. In the said interlolcutory application (I.A. No. 2861 of 2017), it was mentioned that the legal heir of the deceased are Bhaleria Karketta @ Bhaleria Tete and Ignasia Karketta @ Ignasia Kujur. The said application was filed under Order XXII Rule 4 of the Code of Civil Procedure read with Rule 11 of the Code of Civil Procedure.

The second interlocutory application was filed, which is numbered as I.A. No. 9452 of 2017. This interlocutory application was filed by one Jullian Kerkette, who claimed to be the son of the deceased-respondent No. 1, namely, Most. Beronica Khariain. He wanted to intervene as a sole legal heir of deceased-respondent No. 1, claiming to be her only son.

(c) Considering these two interlocutory applications and the claim of the rival parties, a Coordinate Bench of this Court held vide order dated 27.02.2019 passed in S.A. No. 542 of 2003, that there is a dispute as to who are the legal heirs and successors of deceased-respondent No. 1. Considering the said dispute, the Coordinate Bench felt necessary to invoke the provisions of Order XXII Rule 5 of the Code of Civil Procedure and directed the Trial Court to try the question and return the records along with the evidence and the findings so that the dispute in relation to substitution can be resolved.

(d) In compliance to the aforesaid order, the Civil Judge Senior Division, Simdega tried the issue by taking evidence. The said proceeding was numbered as