S.PITCHAI Vs. PONNAMMAL

JUDGEMENT

(1.) Introductory: Whether Interlocutory Application for impleading under Order 1, Rule 10 of the Civil Procedure Code of, at the instance of a third party to the preliminary decree, is maintainable during the final decree proceedings, is the core issue that arises for consideration in this Civil Revision Petition. Brief Facts:

(2.) The petitioner was not a party to the civil suit in O.S. No.3 of 2005. The learned District Munsif, Aruppukkottai, passed a preliminary decree for partition at the instance of the first respondent. Thereafter, the first respondent initiated proceedings in I.A. No. 869 of 2005 for passing a final decree in terms of the preliminary decree. The Advocate Commissioner appointed by the Trial Court inspected the property for partition by metes and bounds. It was only at that point of time the petitioner came to know that a preliminary decree was passed for partition which includes the property in his possession. The petitioner, therefore, filed an application in I.A.No.696 of 2008 for impleading him as a party to the final decree petition. The application was dismissed by the Trial Court primarily on the ground that final decree proceedings is not the appropriate proceedings to implead the petitioner as a party to decide the claim made by him. The Trial Court opined that it is open to the petitioner to initiate any other proceedings in accordance with law. The application was dismissed. Feeling aggrieved, the unsuccessful petitioner is before this Court. Rival Submissions:

(3.) The learned counsel for the petitioner contended that the Trial Court erred in dismissing the application filed by the petitioner for impleading on the ground that in view of absence of challenge to the preliminary decree, the application for impleading in the final decree is not maintainable. The learned counsel contended that even after impleading as a party to the final decree proceedings, it would be possible for the petitioner to file an application to set aside the preliminary decree or to amend it, in view of the legal position that the passing of a preliminary decree would not amount to the disposal of the civil suit.