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1965 Supreme(Ori) 65
HIGH COURT OF ORISSA
G. K. Misra, J.
BAMAN CHANDRA ACHARYA - Appellant
Versus
BALARAM ACHARYA - Respondent
Civil Revn. 163 Of 1964
Decided On : JULY 30, 1965
B.Mohapatra, J.RATH, L.S.MISHRA, M.M.SAHU, R.MOHANTY, R.N.Mishra
A preliminary decree in a partition suit is final and conclusive and cannot be set aside except in the modes provided by law. Therefore, an application for addition of parties cannot be allowed after the preliminary decree is passed except in for lain exceptional circumstances, such as, impletion of transferees subsequent to the preliminary decrees or death of parties whose rights were carved out in the preliminary decree.
Headnote:
PARTIES - IMPLEADING - ADDITION OF PARTIES - PRELIMINARY DECREE - ORDER 1 RULE 10 (2), C. P. C. - POWER TO ADD PARTIES AFTER PRELIMINARY DECREE - SCOPE AND LIMITATIONS - PRELIMINARY DECREE IN PARTITION SUIT - FINALITY - EFFECT OF PRELIMINARY DECREE - SUBSEQUENT APPLICATION FOR ADDITION OF PARTIES - MAINTAINABILITY.
Fact of the Case:
Petitioners claimed interest as co-sharers in the disputed properties under three sale deeds. Their claim for compensation had been allowed in respect of their interest in the tenure which vested in the State. A preliminary decree was passed ex parte in the suit. Petitioners filed an application under Section 151 and Order 1 Rule 10, C. P. C praying that they should be impleaded as parties to the suit. The application was rejected.
Finding of the Court:
The Court held that the petitioners were necessary parties and in their absence the determination of various shares of different co-sharers cannot be effectually and completely made. However, the Court also held that the power under Order 1, Rule 10, C. P. C. can ordinarily be exercised only in proceeding not concluded by a decree unless the person to be added is a subsequent transferee. A preliminary decree had already been passed and if the petitioners rights are adjudicated upon at the final decree stage and the succeed, the right title and interest of the different co-sharers as determined in the preliminary decree, must necessarily be affected.
Issues: 1. Whether the petitioners were necessary parties to the suit? 2. Whether the petitioners could be impleaded as defendants after the preliminary decree?
Ratio Decidendi: 1. The Court held that the petitioners were necessary parties as they claimed interest as co-sharers in the disputed properties and their claim for compensation had been allowed in respect of their interest in the tenure which vested in the State. 2. The Court held that the petitioners could not be impleaded as defendants after the preliminary decree as a preliminary decree is final and conclusive and cannot be set aside except in the modes provided by law.
Final Decision: The Court dismissed the Civil Revision and held that the petitioners' only remedy was to file a suit impleading the plaintiff and the defendants as parties therein.
G. K. MISRA, J.
( 1 ) PETITIONERS 2 and 3 are respectively the son and daughter of petitioner No. 1. Title suit No. 197 of 1956 (hereinafter referred to as the suit) was filed by oppparty 1 (Plaintiff) in the Court of the Munsif. Second Court, Cuttack on 5-10-50. for partition. Plaintiff's title is based on purchase of eight pies interest of madhusudhan Das on 5-10-55 in court auction on 7-5-1956 oi Surendranath Sur and others (defendants 10 (a) to (f)) According to the plaintiff, his vendors defendants 19 (a) to (f) had purchased the property and obtained delivery of possession in 1936 A preliminary decree was passed e. x parle on 4-11-58. The petitioners claimed two annas eleven pies and 1 Biswa interest in the suit properties on the strength of three registered sale deeds executed in favour of the deceased wife of petitioner 1 on 30-5-47. 1-1-49 and 3-1-49 As the tenure vested in the State of Orissa. there was dispute between the plaintiff and the petitioners regarding payment of compensation Order dated 19-1-62 of the Compensation officer, Tenure Section, in Compensation Case No. 470 of 1960, shows that the three sale deeds of the petitioners and the preliminary decree in the suit were produced before that officer This compensation matter was carried to the Board of revenue and the plaintiff got compensation only in respect of seven pies interest in the entire tenure The order of the Board of Revenue was passed on 17-8-63 upholding claim of the petitioners to compensation On 6-4-64 plaintiff and the defendants filed a compromise petition in the suit. On 28-4 1964 the petitioners filed an application under Section 151 and Order 1 Rule 10, C P C praying that they should be impleaded as parties to the suit. On 15-5-1964 the application was rejected. Againsl the order rejecting the application of the petitioners to add them as parties to the suit the Civil Revision has been filed.
( 2 ) MR. Misra contends that the trial Court failed to exercise a jurisdiction vested in it, or, at any rate, acted in exercise of ita jurisdiction illegally and with material irregularity in not allowing the application of the petitioners to implead them as parties. This contention requires careful examination.
( 3 ) ORDER 1 Rule 10 (2 ). C. P. C. may be quoted the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, he struck out. and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. be added. Thus two questions arise for consideration :
(i) Whether the presence of the petitioners is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit: find (ii) If the petitioners are necessary parties. can they be impleaded as defendants after the preliminary decree '?
( 4 ) THE petitioners claim two annas eleven pies and one Biswa interest in the disputed properties under three sale deeds. On the footing of these documents their claim for compensation has been allowed in respect of their interest in the tenure which vested in the State and that has become final It may be that ultimately the claim of the petitioners may he negatived in the suit The position is how-ever clear that they claim interest as cosharers They would not be bound by the result of the suit if they are not made parties. It is open to them to file a fresh suit for partition impleading the plaintiff and the defendants its parties thereto If their claim succeeds, the effect of the decree in the present suit would wholly disappear Petitioners are therefore, necessary parties and in their absence the determina
