PADMINI CHOUDHURY Vs. ASHOK KUMAR PATEL

JUDGEMENT

(1.) THIS Civil Revision is directed against the order dated 27.7.2000 passed by the Additional District Judge, Sambalpur, in Misc. Appeal No. 18/2 of 1999, dismissing the appeal and confirming the order passed by the Civil Judge (Senior Division), Kuchinda, in T.S.No. 2/1988 allowing an application for substitution.

(2.) THE brief facts leading to this application as delineated in this revision may be stated thus. One Judhistir Choudhury filed a suit for partition being Title Suit No. 2 of 1988 in the Court of the Civil Judge (Senior Division), Kuchinda, claiming his 1/4th share in the suit property and a preliminary decree was passed on 29.3.1991. As there was no appearance on the side of the defendants, they were set ex parte and basing upon the evidence of the plaintiff as P.W.1, the trial Court decreed the suit preliminary ex parte against the defendants declaring the 1/4th share of the plaintiff in the suit property. The ex parte judgment was passed on 18.3.1991. When the matter stood thus, the present Opposite Party filed an application in the year 1996 under Order 22, Rule 3 of the Code of Civil Procedure claiming to be the legal heir of the deceased plaintiff Judhistir Choudhury, who died on 26.7.1992 as well as his wife on 7.4.1996. The present Opposite party claimed to be the legal heir of Judhistir Choudhury on the strength of a Willnama registered in favour of the opposite party and in the said application he prayed to allow him to continue the final decree proceeding and for the aforesaid purpose he wanted to be substituted as plaintiff in place of late Judhistir Choudhury. He also filed an application on 24.6.1996 to make the decree final.

(3.) BEING aggrieved by the aforesaid order, the present petitioners moved the District Judge, Sambalpur in Misc. Appeal No. 18/2 of 1999 and the appellate Court ultimately dismissed the appeal holding that the effect of impleading Ashok Kumar Patel in the suit is limited to continuation of suit in place of Judhistir Choudhury. No prejudice can be said to have occasioned to the legal heirs of deceased -defendant No. 9 by impleading Ashok Kumar Patel as substituted L.R. of the original plaintiff Judhistir Choudhury. In the preliminary decree, the entitlement of share has been carved out and the L.Rs. of the deceased Rushi Choudhury have every scope of protecting their interest in final decree proceeding. Learned counsel for the petitioners strongly argued that in terms of Order 22, Rule 10 of the CPC, an application by an assignee is maintainable with the leave of the Court only in the event of an assignment takes place during the pendency of the suit. Since in this case, a preliminary decree has already been passed and no final decree proceeding has been initiated during the life time of Judhistir Choudhury, it is argued by the learned counsel for the petitioners that nothing was pending after the disposal of the suit, for which the application for substituting the Opposite Party is not maintainable.