The Court has the discretion to allow the amendment application if it is necessary for the interest of justice and proper adjudication of the dispute between the parties.

JUDGMENT :

Sanju Panda, J. - This writ application has been filed by the Petitioner challenging the Order Dated 22.1.2003 passed by the Learned Addl. Civil Judge (Senior Division), Puri in Misc. Case No. 6 of 2001 arising out of Execution Case No. 6 of 2000 rejecting the prayer for amendment.

2. The facts of the case are as follows;

3. The present Petitioner is the Judgment debtor & the Opposite Parties are the decree holders. The Opposite Parties-decree holders instituted a suit for declaration of their right to re-purchase the interest of their co-sharers & a decree for permanent injunction restraining the stranger purchaser from disturbing their possession. The subject-matter of the suit was the dwelling house constructed by the predecessor-in-interest of the Opposite Parties- Plaintiffs prior to 1965. The Petitioner purchased half share of the said dwelling house from Defendant Nos. 2 to 4, the co-sharers of the Plaintiffs, by a registered sale deed dated 28.3.1971 & also purchased 4 annas interest in respect of the said house from Defendant No. 6, another co-sharer, by registered sale deed dated 1.7.1978. The Plaintiffs inter alia alleged that the dwelling house belonged to an undivided Hindu family & the Petitioner being a stranger purchaser, was not entitled to joint possession. The co-sharers Defendants did not contest the suit. The Petitioner alone contested the suit as he purchased 3/4th portion of the suit house from the co-sharers. The Petitioner specifically stated that the portion he purchased was partitioned by metes & bounds before the said purchase. He was in possession of the said portion which was distinct & separate from the other portion in occupation of the Plaintiffs by intervening wall. Both the partitions have their separate egress & ingress. The Plaintiffs' suit was decreed on the finding that the dwelling house was never partitioned & Second Appeal No. 13 of 1987 filed by the Petitioner was dismissed as no substantial question of law was involved. Thereafter, the Petitioner filed SLP (Civil) No. 19882 of 1998 before the Apex Court. The Apex Court issued notice to find out whether Respondent Nos. 1 to 3 (Plaintiffs- Opposite Parties) would be agreeable to re-purchase the share which the Petitioner had purchased from the other co-sharers. The SLP was disposed of on the statement made on behalf of the Respondents-Plaintiffs that they were willing to re-purchase the portion which was purchased by the Petitioner from the other co-sharers in the year 19(98. Now the Judgment debtor-Petitioner has come forward with the plea that the Plaintiffs had never purchased the suit property, from the Petitioner by a registered sale deed of the year 1998.

4. The Petitioner raised all his questions in the execution proceedings by filing an application u/s 47 of the CPC which was registered as Misc. Case No. 6 of 2001 stating therein that the decree under the execution case was void or opposed to law as there was no prayer for partition on the basis of which a prayer u/s 4 of the Partition Act for re- purchase could have been granted. The Petitioner urged that the decree holders did not have any title in respect of the suit property from which they have sought dispossession of the Judgment debtor & also urged that the execution of the decree could not be granted after lapse of more than twelve years from the date of decree. Further, inter alia, he stated that the co-sharers having alienated their shares in favour of the Petitioner, they have no subsisting title & have not retained any authority to execute successive sale deeds inasmuch as the Petitioner lost his rights whatsoever. The Petitioner being the bona fide purchaser was entitled to the suit property in exclusion of all others including the subsequent purchasers. The Plaintiffs-decree holders had never purchased the property from the Petitioner. Therefore, they were not entitled to get recovery of possession of the disputed property from the Petitioner in the executi