INTRODUCTORY:

1. Whether Interlocutory Application for impleading under Order 1 Rule 10 of the Code of Civil Procedure, at the instance of a third party to the preliminary decree, is maintainable during the final decree proceedings, is the core issue that arises for consideration in this Civil Revision Petition.

BRIEF FACTS:

2. The petitioner was not a party to the civil suit in O.S.No.3 of 2005. The learned District Munsif, Aruppukkottai, passed a preliminary decree for partition at the instance of the first respondent. Thereafter, the first respondent initiated proceedings in I.A.No.869 of 2005 for passing a final decree in terms of the preliminary decree. The Advocate Commissioner appointed by the Trial Court inspected the property for partition by metes and bounds. It was only at that point of time the petitioner came to know that a preliminary decree was passed for partition which includes the property in his possession. The petitioner, therefore, filed an application in I.A.No.696 of 2008 for impleading him as a party to the final decree petition. The application was dismissed by the Trial Court primarily on the ground that final decree proceedings is not the appropriate proceedings to implead the petitioner as a party to decide the claim made by him. The Trial Court opined that it is open to the petitioner to initiate any other proceedings in accordance with law. The application was dismissed. Feeling aggrieved, the unsuccessful petitioner is before this Court.

RIVAL SUBMISSIONS:

3. The learned counsel for the petitioner contended that the Trial Court erred in dismissing the application filed by the petitioner for impleading on the ground that in view of absence of challenge to the preliminary decree, the application for impleading in the final decree is not maintainable. The learned counsel contended that even after impleading as a party to the final decree proceedings, it would be possible for the petitioner to file an application to set aside the preliminary decree or to amend it, in view of the legal position that the passing of a preliminary decree would not amount to the disposal of the civil suit.

4. The learned counsel for the first respondent contended that the remedy of the petitioner is only to set aside the preliminary decree in the manner known to law. According to the learned counsel, the scope of an application under Order 1 Rule 10 is very limited. It is not open to a third party to implead in a final decree petition for the purpose of deciding his rival claim.

ANALYSIS:

5. The first respondent filed a suit for partition impleading the respondents 2 to 6 as defendants. The petitioner was not a party to the civil suit. The petitioner has taken up a contention that only after the Advocate Commissioner visited the property for measurement to divide it by metes and bounds, he came to know of the preliminary decree passed by the Trial Court.

6. The petitioner in his affidavit filed in support of the Interlocutory Application in I.A.No.696 of 2008 contended that item No.1 absolutely belongs to him and as such, the first respondent has no right to claim partition of the said property. The petitioner further contended that he was given patta in respect of the said property and as such, the property is not liable for partition.

7. The first respondent, in her counter-affidavit in I.A.No.696 of 2008, appears to have taken up a different contention with respect to the devolution of property shown as item No.1 and the right claimed by the petitioner.

8. The Trial Court dismissed the application under Order 1 Rule 10 of the Code of Civil Procedure only on the ground of non-challenge made to the preliminary decree. The Trial Court was of the view that the proper remedy is only to set aside the preliminary decree by initiating appropriate proceedings and not by way of an application to implead in the final decree proceedings.

9. The power of the Court for addition of parties emanated from Order 1 Rule 10 of the Code of Civi