SUMABAI ALIAS SUMAN Vs. BASAGOUDA RAMA SANKAPAL

JUDGEMENT

(1.) THIS revision petition arises from the judgment and order dated 27-1-1994, delivered by principal munsiff, chikodi, in miscellaneous case No. 48 of 1989, rejecting the applicants application under order 20, Rule 18 of the Civil Procedure Code and under Section 54 of the Civil Procedure Code as not maintainable. Learned munsiff has taken the view that the legal heirs of the deceased defendant 3 has not been made party to this proceedings, and the decree which was affirmed by the appellate courts cannot be modified by the trial court. It also opined that the decree of the appellate court became final and it could not be open to him to modify that decree.

(2.) THE facts of the case in the nutshell are that the suit for partition had been filed namely suit No. 20 of 1972. It was decreed by the additional civil judge, chikodi, whereunder 1/5th share was allotted to the deceased sundarabai and similar share to others. Preliminary decree was passed by the civil judge and the matter, it has been brought to my notice, had come up to this court by way of second appeal and the decree of the trial court has been affirmed by this court. It appears that subsequently sundarabai having died sometime during the pendency of second appeal, so thereafter an application was moved by the applicants that 1/5th of the plaintiff be adjusted among the heirs and who will be entitled to that share, and that should be decided as to whom it has to go and if it has to pass on to the applicants, their share be increased, if so in the preliminary decree or by passing second preliminary decree. As mentioned earlier, the trial court rejected this application. so applicants who are the heirs of defendant 2, have come up before this court under Section 115 of Code of Civil Procedure.

(3.) I have heard Smt. Vasuda, an Advocate of this court holding brief for Sri g. s. visweswara for the petitioner and Sri b. s. kamate for the respondents.