VASUDEVA KALLURAO Vs. RAMACHANDRA RAO

JUDGEMENT

(1.) The question that arises for consideration in this Civil Revision Petition is whether in the final decree proceedings in a suit for partition an application for impleading will lie under O.1 R.10 of the Code of Civil Procedure, 1908 even if the person sought to be impleaded would have been a proper party. The plaintiff in O. S. No. 59 of 1973 on the file of the Subordinate Judge, Kasaragod is the petitioner in this Civil Revision Petition. The above suit was filed by the plaintiff for partition and the defendant is none other than his brother. The grievance of the petitioner is against the order of the learned Subordinate Judge allowing an interim application filed in the final decree proceedings by the mother of the plaintiff and the defendant to get herself impleaded as the supplemental 2nd respondent in the final decree application The case of the mother in the application for impleading is that the plaintiff and the defendant are liable to pay maintenance to her and she has got a charge for the same over the family properties which are the subject matter of the suit for partition. The Trial Court came to the conclusion that the mother's claim for maintenance can also be considered in the final decree proceedings and impleaded her as supplemental 2nd respondent in the application for final decree.

(2.) Shri U. P. Kunikullaya, learned counsel for the plaintiff-petitioner, contends that after the preliminary decree no third party can be impleaded under O.1 R.10 of the Code of Civil Procedure. According to the learned counsel, the 2nd respondent is free to file a fresh suit and that is what she should resort to. It is further contended that if the 2nd respondent wanted to get herself impleaded in the partition suit she should have moved the Court before the passing of the preliminary decree, learned counsel then points out that the preliminary decree for partition is 'final decision'. In this connection, reference is made to Venkata Reddy v. Pethi Reddy ( AIR 1963 SC 992 ). In Para.6 of the above decision the Supreme Court has said:

(3.) Shri K.P.V.B. Ejman, learned counsel for respondents 1 and 2 points out that by the impleading allowed in this case no necessity to reopen the decision by the preliminary decree arises. Learned counsel contends that though the applicant is not a sharer, she is a proper and necessary party as a maintenance bolder. Learned counsel then contends that at any rate the order impugned being a purely discretionary order of the Trial Court is not to be interfered in revision. In support of this contention reference is made to Kunchelan v. Damodaran ( 1960 KLT 262 ).