SHAMIM FATIMA Vs. MAHMOOD FATIMA

JUDGEMENT

(1.) HEARD Sri H.M Srivastava, learned counsel for the appellant and Chaudhary Subhash Kr. Srivastava, learned counsel for the respondent. This is defendant's appeal against the preliminary decree passed in suit for partition, namely, Original Suit No. 328 of 1990 (Smt. Mahmood Fatima vs. Smt. Shamim Fatima). The suit for partition filed by the plaintiff was decreed on 24.11.1991. The preliminary decree dated 24.11.1991 was challenged in appeal. The lower appellate court dismissed the appeal by the judgment and order dated 14.07.1995.

(2.) AT the time of admission of present second appeal, this court passed the following order:-

(3.) DURING pendency of the said application and the present second appeal, the plaintiff transferred her half share in the suit property by way of registered sale deed dated 06.04.1998 in favour of one Sharif Ahmad. Sharif Ahmad moved an application for his impleadment in Misc. Case No. 87 of 1995. The appellant filed objection to the impleadment application. The impleadment application was allowed by order dated 12.07.2004 passed by Civil Judge (Senior Division), Orai. The application under Section 47 C.P.C. registered as Misc. Case No. 102 of 1996 filed by the defendant appellant was rejected by the court below by order dated 13.8.2008 on the ground that the Misc. Case No. 87 of 1995 has been filed by the plaintiff for preparation of final decree on the basis of preliminary decree dated 24.12.1991. As the final decree had not been prepared at the time of filing of objection under Section 47 C.P.C., the same was found premature and was rejected as such.