JUDGMENT

S. PANDA, J.

1. The petitioners in this writ petition challenges the order dated 20th April, 2012 passed by the learned Additional Civil Judge (Senior Division), Balasore in Civil suit No. 93/1985-1 F.D. rejecting the petition filed by them under Order 1, Rule 10 read with Order 23, Rule 1-A of the Civil Procedure Code to transpose defendant Nos. 3 and 4 as the decree holders.

2. The facts leading to the present writ petition are as follows:–

Opposite party No.1 who was defendant No.1 filed final decree proceeding arising out of Title Suit No. 93/89-1 to execute the decree in a suit for partition. A commissioner was deputed for the said purpose. However, the final decree proceeding could not be completed. During pendency of the said proceeding, a receiver was appointed in pursuance of the order dated 30.10.2006 passed by this Court in W.P.(C) No 2941 of 2005. Thereafter, the Court below by order dated 18.4.2012 in Interim Application No. 17 of 2002 under Order 39, Rules 1 and 2 of the Civil Procedure Code directed the parties to maintain status quo.

While the matter stood thus, opposite party No.1 to defeat the order passed by the Court filed an application to withdraw the final decree proceeding on the ground that he was suffering from various diseases and final decree had been continuing for a considerable length of time and due to formal defects. The said application was resisted by the petitioners. They also filed an application under Order 1, Rule 10 read with Order 23, Rule 1-A of the Civil Procedure Code to transpose them as decree holders and continue the proceeding. They also stated that since the final decree proceeding is continuing for a considerable length of time and the original plaintiff and defendant No.1 have colluded with each other, it will be proper to transpose defendant Nos. 3 and 4 as decreed holders for giving finality to the proceeding. The said application was rejected by the Court below by the impugned order.

3. Learned counsel for the petitioners submitted that in a suit for partition, there is no distinction between the plaintiff and the defendant and any of the parties can take position of the plaintiff. He further submitted that share of the parties have already been decided in a preliminary decree. Therefore, in the final decree proceeding, the same is to be carved out only. Thus, the Court below should not have allowed the application for withdrawal of the final decree proceeding. Therefore, the impugned order is liable to be quashed. In support of his contentions, he has cited the decisions of this Court in the case of Gokulananda Jena vs. Jadunath Jena & others reported in 2002 (II) OLR 453, Mahitosh Sinha vs. Shyamapada Sinha & others reported in 2005 (Supp.) OLR 958, Bholanath Mohanta & others vs. Sridhar Mohanta & others, 82 (1996) CLT 582, Natabar Majhi & others vs. Bata Majhi & reported in 2007 (II) CLR 741 & 2007 (Supp. II) OLR 736.

Learned counsel for opposite party No.1, however, supporting the impugned order submitted that since opposite party No.1 has filed the final decree proceeding, the Court below rightly permitted opposite party No.1 to withdraw the same and it is open to the other parties to the said proceeding to initiate the final decree proceeding. In support of his contention, he has cited a decision of the apex Court in the case of M/s. Hulas Rai Baij Nath vs. Firm K.B. Bass & Co. reported in AIR 1968 SC 111.

5. From the rival submissions of the parties and on perusal of the record, it appears that this Court on 9.5.2012 stayed the further proceeding of the final decree. On 19.10.2012, this Court directed the parties to maintain status quo as on date over the disputed property since opposite party No.1 was continuing with some construction work over the disputed property. From the narration of facts, as stated in the above paragraphs, it is clear that the suit was filed for partition in which preliminary decree was passed. Opposite party No.1 has filed the final decr