KASHED ALI SARDAR Vs. HAMIDA BIBI

JUDGEMENT

(1.) The common question involved in these revisional applications under Article 227 of the Constitution is whether the learned Judges of the trial Court were justified in allowing impleadment of new parties as additional defendants in the partition suits pending before them, upon allowing applications under Order I Rule 10(2), Code of Civil Procedure Code made in that behalf after preliminary decrees in the suits had been passed therein, which attained finality by reason of not being appealed against.

(2.) According to Mr. Ghosh, learned advocate for the petitioners in C.O. 1492 of 2011 [being the plaintiffs in a suit for partition being T.S. 75 of 1981, pending on the file of the learned Civil Judge (Senior Division), 10th Court, at Alipore], who suffered the impugned order dated March 5, 2011 allowing the prayer of the opposite parties 1 to 20 for their impleadment as additional defendants, the question is no longer res integra. He contended that based on the authority of the Supreme Court decision : Venkata Reddi v. Pethi Reddi, 1963 AIR(SC) 992 the Orissa High Court in its decision : Baman Chandra Acharya v. Balaram Acharya, 1966 AIR(Ori) 160 and the Division Bench of the Kerala High Court in its decision : Neela Kantha Pillai Ramachandran Nair v. Ayyappan Pillai Kumara Pillai, 1978 AIR(Ker) 152 have ruled that after passing of preliminary decree in a partition suit, addition of parties cannot be allowed if the preliminary decree is to be ripped open for an adjudication regarding its propriety and/or validity.

(3.) It would be convenient to note the conclusions reached by the learned Judges of the Orissa and the Kerala High Courts in the decisions referred to supra.