A JAYARAJ Vs. A KUMARAVEL

JUDGEMENT

(1.) This revision is directed against the order made in I.A. No. 299 of 1984 in O.S. No. 82 of 1975 on the file of Subordinate Judge's Court, Tirunelveli.

(2.) The following facts are necessary for appreciating the point that was raised by the learned counsel for the petitioner :- O.S. No. 82 of 1975 is an action for partition. The preliminary decree came to be passed on 25th July 1979 declaring that the plaintiffs 1 to 3 are entitled to 3/5th share in items 1 to 17 and 20 to 24 of the plaint first schedule, second schedule, and third schedule properties directing division of the said items into five equal shares and allotting three such shares to the plaintiffs 1 to 3. Cl.4 provides that while dividing the third schedule business concerns, endeavour shall be made to allot one or more such concerns to plaintiffs 1 to 3 and defendants 1 and 2. After the passing of the preliminary decree, the first plaintiff found his interest coming into conflict with that of other plaintiffs. Therefore, LA. No. 299 of 1984 was taken out by the first plaintiff to transpose himself as fifth defendant in the action. The learned subordinate Judge allowed the said application. It is this order that is sought to be revised in this revision.

(3.) Mr. M. Srinivasan, learned senior counsel submitted that after that decree, there is an appeal pending in this Court as against the decree made in O.S. No. 82 of 1975 and therefore the appropriate forum to maintain an application is this Court but not the trial Court which passed the decree. The second objection is that after a preliminary decree was passed, there is no question of transposition and that any transposition would alter cl. 4 in the decree and that except in the appeal there can be no alteration of a preliminary decree passed in this suit. In this connection, the learned counsel referred to O. 1 R. 10 CPC and decisions viz., Ghulam Mohammed v. Ahad Sheikh, AIR 1952 J and K 33 and Rajammal v. Muthuraj, (1962) 2 Mad LJ 423 at p. 425.