HIDAYATH BANU Vs. SYED HASAN MOHIUDDIN

JUDGEMENT

(1.) Suit for partition was filed in the year 1979 in O S No. 160 of 1979. The parties in these cases belong to Muslim community. Some of the persons who are related to the plaintiffs and defendants filed an application under Order 1 Rule 10 CPC stating that they are-necessary parties for determination of the suit as they are also interested in the property that is sought to be partitioned. D-1 to D-3 contested that application, the arguments finally were heard on 25-6-1986 and the application I \ No. 1263/85 was posted for orders on 8-7-1986 The plaintiffs and defendants fikd I A No. 604 / 86 on 4-7-1986 to record a compromise. The compromise as prayed for was ordered. I A No. 1263/85 which was posted for orders on 8-7-1986 wag advanced and the court passed the following order on 4-7-1986 : " Advanced to today suo moto. As the suit has been disposed of, the petition is dismissed and closed. "

(2.) When an application filed under Order 1 Rule 10 CPC. is pending before the Court, it is the duty of the court to dispose of the said application pending disposal of the suit. So long as the suit is not disposed of, the party who has filed the application under Order 1 Rule 10 is entitled to seek relief. Admittedly, in this case when the application filed under Order 1 Rule 10 was posted for orders on 8-7-1986, there is no justifiable reason for the lower court to record the compromise on 4-7-1986 and dismiss the petition filed under Order 1 Rule 10. There is also no notice to the parties in I A No. 1263 of 1985. The impugned order is not sustainable inasmuch as I A No. 1263 of 1985 ought to have been disposed of before recording the compromise in I A No. 604 of 1986. The proper course that should be followed in a case like this is that the lower court ought to have passed appropriate order, either allowing or dismissing the petition, filed under Or. 1.R 10 CPC before recording the compromise. The procedure adopted by the lower court is erroneous and contrary to the settled norms.

(3.) The impugned order in C R P No. 2767 of 1986 is set aside and the lower Court is directed to restore I A No. 1263 of 1985 to file and dispose of the same on merits and then consider the disposal of the application filed for compromise in I A No. 604 of 1986.