NEELAKANTA PILLAI Vs. AYYAPPAN PILLAI

JUDGEMENT

(1.) This Civil Revision Petition is directed against an order passed by the 1st Addl. Munsiff, Neyyattinkara, allowing I. A. No. 2689 of 1975 filed by the plaintiff in O. S. No. 2 22 of 1968 of his court under O.1 R.10 C. P. C. for impleading the revision petitioner herein as an additional defendant in the suit The suit O. S. No. 2522 of 1968 has been filed by the respondent herein for redemption of a mortgage of 1104. That suit was instituted on 20-12-1968. Prior thereto, the plaintiff had issued a notice of suit to the defendant on 10-12-1968 to which there was no reply. It would now appear that subsequent to the receipt of the said notice and just two days prior to the institution of the suit, the defendant mortgagee had executed a document dated 18-12-1968 purporting to transfer his mortgage right in favour of the revision petitioner. The plaintiff however was kept in the dark about this. The result was that the suit was filed with the original mortgagee as the sole defendant and that position remained till 22-10-1970 on which date a preliminary decree for redemption was passed. It is necessary to mention at this stage that even though the defendant in the suit bad been duly served with summons he chose to remain ex parte without even filing a written statement. On 4-12-1970 the plaintiff filed an application praying for the passing of a final decree in the suit Notice of that application was duly served on the defendant on record. After a lapse of very nearly four years an objection petition was put in by the defendant on 31-10-1974 mentioning for the first time that the mortgage right had been transferred by him in favour of the revision petitioner as per the document dated 18th December 1968. On coming to know about the said fact from the said objection petition the plaintiff filed I. A. No. 2689 of 1975 out of which this revision petition arises, praying that the assignee, namely, the present revision petitioner, should be impleaded as a party in the suit. That application was opposed by the revision petitioner contending that it was not open to the court below to implead additional parties under O.1 R.10 CPC., after a preliminary decree had already been passed in the suit. The lower court overruled that contention and allowed I.A. No. 2689 of 1975. Hence this revision petition filed by the assignee who has been impleaded as the additional 2nd defendant.

(2.) Our learned brother Narendran J. before whom this revision petition originally came up for hearing considered that the case should be heard by a Division Bench, since there has not been any pronouncement of a Division Bench of this Court on the question of law as to whether subsequent to the passing of the preliminary decree for partition of redemption it is legally competent for the court to implead additional parties under O.1 R.10, C.P.C. It is pursuant to that order of reference that the case has now come up before us.

(3.) In support of his contention that the court below had no jurisdiction to order the impleadment of additional parties subsequent to the passing of a preliminary decree, the learned advocate for the revision petitioner strongly relied on the decision of a learned Single Judge of the Orissa High Court reported in Baman Chandra v. Balaram ( AIR 1966 Ori. 160 ) and also a ruling of our learned brother Narendran J. reported in Vasudeva Kallurao v. Ramachandra Rao ( 1977 KLT 414 ) wherein the Orissa ruling has been followed. As against this, the learned advocate appearing for the respondents pressed into service certain rulings of the Andhra Pradesh, Madras and Patna High Courts to which we shall presently be referring. Before we discuss the rulings cited before us, it is necessary to read O.1 R.10 CPC. which is the relevant provision contained in the Code empowering the court to strike out or add parties: