LAXMIPRIYA MISTRI Vs. PADMOLOCHAN RANA

JUDGEMENT

(1.) The petitioners in this writ petition challenges the order dated 20th April; 2012 passed by the learned Addl. Civil Judge (Senior Division), Balasore in Civil suit No. 93/1985-I.F.D. rejecting the petition filed by them under Order 1, Rule 10 read with Order 23; Rule-A of the Civil Procedure Code to transpose defendant Nos. 3 and 4 as the decree holders. The facts leading to the present writ petition are as follows:

(2.) Learned counsel for the petitioners submitted that in a suit for partition, there is no distinction between the plaintiff and the defendant and any of the parties can take position of the plaintiff. He further submitted that share of the parties have already been decided in a preliminary decree. Therefore, in the final decree proceeding, the same is to be carved out only. Thus, the Court below should not have allowed the application for withdrawal of the final decree proceeding. Therefore, the impugned order is liable to be quashed. In support of his contentions, he has cited the decisions of this Court in the case of Gokulananda Jena v. Jadunath Jena and others, 2002 2 OrissaLR 453, Mahitosh Sinha v. Shyamapada Sinha and others,2005 1 OrissaLR 958, Bholanath Mohanta and others v. Sridhar Mohanta and others,1996 CalLT 582, Natabar Majhi and others v. Bata Majhi and others,2007 2 OrissaLR 736.

(3.) Learned counsel for opposite party No. 1, however, supporting the impugned order submitted that since opposite party No. 1 has filed the final decree proceeding, the Court below rightly permitted opposite party No. 1 to withdraw the same and it is open to the other parties to the said proceeding to initiate the final decree proceeding. In support of his contention, he has cited a decision of the apex Court in the case of M/s. Hulas Rai Baij Nath v. Firm K.B. Bass and Co., 1968 AIR(SC) 111