ALLAPPA HALAPPA GANESHWADI Vs. VIRUPAXAYYA DANAYYA MATHAD

JUDGEMENT

(1.) Aggrieved by the order passed in I.A.No.VI in O.S.No.376/2025 dtd. 2/2/2026 by the Senior Civil Judge and JMFC, Banahatti, the petitioner who is a third party is before this Court.

(2.) The respondent Nos.1 and 2 had filed O.S.No.376/2025 seeking partition and separate possession. The defendant No.1 had died during the pendency of the suit and later, the respondents herein who are the plaintiffs and defendants had compromised the suit. It is the case of the third party that defendant No.1 in the suit had executed a Will in favour of the petitioner and he is a proper and necessary party to the suit. Accordingly, he had filed I.A.No.VI under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 (herein after referred to as 'CPC'). According to the petitioner, under Order 23 Rule 3 of CPC, he is entitled to come on record, though he is a party to the suit and he can question the compromise decree. Along with I.A.No.VI, he has filed another application to set aside the compromise decree and sought for other consequential reliefs.

(3.) The trial Court by order impugned had rejected I.A.No.VI filed by the petitioner. While rejecting the application, the trial Court had observed that the plaintiffs and defendants are brothers and sisters. The proposed applicant is stranger to the plaintiffs and defendants. Moreover, as on the date of the filing of present petition, no such suit is pending between the parties of present petition, no such suit is pending between the parties to adjudicate the matter by the trial Court. The plaintiffs and defendants already settled the matter amicably by filing compromise petition under Order 23 Rule 3 of CPC. Moreover, the documents filed by the proposed applicant reveals that on the basis of alleged Will executed by defendant No.1, they have filed petition seeking Probate before the Additional District and Sessions Court at Athani which is pending for consideration. Further, under the compromise petition, the plaintiffs and defendants are not at all divided the suit properties. Under the compromise petition, the plaintiffs and defendants entered their names jointly in the records of rights by deleting the name of deceased defendant No.1.