TRILOCHAN DAS ADHIKARI Vs. SIMANCHAL RATH

JUDGEMENT

(1.) THIS is an appeal by defendant Nos. 1 and 9 challenging the judgment of the learned District Judge remitting the suit to the trial Court for fresh disposal.

(2.) RESPONDENT No. 1 filed T. S. No. 38 of 1987 in the Court of Subordinate Judge, Aska praying for declaration that Sri Madan Mohan Swamy Bije (defendant No 9 and the present appellant No. 2) is a Hindu deity installed in its temple and the same is neither a Math nor the defendant No. 1 (present appellant No. 1) is its Mahanta and the decree obtained by him (defendant No. 1) declaring him as the Mahanta in T.S. No. 83 of 1981 in the Court of Subordinate Judge, Aska is illegal and without jurisdiction.

(3.) THE learned trial Court took on one of the six issues as the preliminary issue and decided against the plaintiff dismissing the suit, the said issue being whether the judgment and decree passed in T. S. No. 83 of 1981 of the Subordinate Judge, Aska is valid and within jurisdiction. Being aggrieved by the said order, the plaintiff preferred appeal and the learned District Judge held that the suit should not have been disposed of on preliminary issue. He further noticed that the deity (defendant No. 9) in the suit whose interest was primarily involved had not been made to appear through any guardian to represent his cases contrary to the provisions contained in Order 32, Rules 3 and 11 of CPC. He accordingly, set aside the order of the trial Court and remitted the suit for fresh disposal after complying the provisions of Order 32 Rule 3, CPC.