PRAFUL KUMAR SAHU Vs. PAHALI SWAIN

JUDGEMENT

(1.) THE petitioner's prayer for being impleaded as a party in a final decree proceeding having been rejected he has come up to this Court to challenge the said order. O. S. No. 46/1975 -I was filed by the opposite parties 1 and 2 for partition of the -properties described under schedules Ka and Kha of the plaint. In the said suit Juti Bewa, opposite party No. 3, the mother of opposite party No. 2 and mother -in -law of opposite party No. 1 was impleaded as defendant No. 1. Opposite party Nos. 4 to 7, sisters of Kusuma were impleaded as defendants 2 to 5 respectively. It is not necessary to state about the other opposite parties since they arc not concerned in the present proceeding. In the said suit a preliminary decree was passed on 20th of April, 1977 whereunder plaintiff No. 2, Kusuma Dei and defendants 1 to 5 were held to be entitled to 1/24th share each in Ka, Kha and Ga schedule properties. Thereafter at the instance of the plaintiff the final decree proceeding was initiated. In course of the said proceeding an application was filed on 10. 1. 1981 by defendants 1 to 5, 11 and the present petitioner stating inter alia that Prafulla Kumar Sahu (petitioner) was the adopted son of Juti Bewa, the adoption having taken place in 1974 and Prafulla should be impleaded as a party in the final decree proceeding. It is pertinent to mention here that this application has been styled as an objection to this by some of the defendants wherein the present petitioner admittedly a stranger to the proceeding signed as an applicant. No objection was filed to this application by the plaintiffs or other defendants. As previously noticed, the application was rejected by the Court. The order reveals that the main ground on which the Court did not accept the prayer of the petitioner was that it was grossly delayed and no material in support of the alleged adoption was placed before the Court by the applicant.

(2.) SHRI G. S. Rath, learned counsel for the petitioner submits that the Court below should not have rejected the prayer simply on the ground of delay in view of the clear averments in the deed executed by Juti and her daughters accepting the position that he was the adoptive son of Juti and was entitled to a share of property. He further contends that even apart from the question of adoption, in view of the transfer' of the shares of Juti and defendants 2 to 5 in his favour by way of gift, the prayer of the petitioner to be impleaded in the final decree should not have been rejected. The learned counsel has placed reliance on a decision of this Court in the case of (Baman Chandra Acharya and Ors. v. Balaram Acharya and Ors.), I. L. R. 1966, Orissa 160 and on other decisions reported in A. I.R. 1978 Kerala, 152 (Neelakantha Pillai Ramacha -ndran Nair v. Ayyappan Pillai Kumara Pillai) and A. I. R. 1976 A. P. 226 (Ramader Appala Narasingha Rao v. Chunduru Sarada) in support of his case. On careful consideration, I am unable to accept the contention raised by the learned counsel for the petitioner that in the facts and circumstances of the present case the petitioner was entitled to be impleaded as a party in the final decree proceeding pending before the Subordinate Judge. The position is well -settled that under Order 1, Rule 10, C. P. C, the Court has ample power to implead any person who in its opinion should be impleaded in the proceeding for proper and effective adjudication of the proceeding at any stage before the proceeding is finally concluded. The position is also not in controversy that a suit for partition is not finally despised of till the final decree is signed and sealed by the Court. This Court in A.I. R. 1966 Orissa 160 (supra) referring to Section 2(2) of the Code and Section 97 thereof, laid down that only in exceptional circumstances an application for being irnpleaded as a party after passing of the preliminary decree can be entertained. Giving some instances of exceptional circumstances it was mentioned where the applicant was a transferee of a portion of the suit properties after the preliminary decree or where one of the parties to the suit whose right was carved out in the preliminary decree died during pendency of the suit. It was further clarified in the said decision that in case allowing the application would result in reopening the preliminary decree and in altering the shares of the parties the application is to be rejected. The same position of law his been rettecaced by the Kerala High Court in A. I. R. 1978 Kerala, 152 and the Andhra Pradesh High Court in A. I. R. 1976 A. P. 226. Thus it is clear that an application under Order 1, Rule 10, C. P. C, is maintainable during the pendency of a final decree proceeding though only in exceptional circumstances. The Court below in the present case has also not rejected the application on the ground of its non -maintainability. The next question for consideration is whether in the facts and circumstances of the case the application of the petitioner comes within the principles laid down in the cases referred to above. In other words, whether allowing the application of the petitioner would result in reopening the preliminary decree. As noticed eatlier, the prayer of the petitioner in the application dated 10.1.1981 was based on his allegation that he was the adopted son of Juti Bewa. In the event of the adoption being accepted, it would require varying the preliminary decree since the petitioner as the adopted son would be entitled to a share in the property and the further question whether the daughters of Juti were at all to be entitled to the shares or not would arise for consideration. Hence, according to the principles noticed above the application under Order 1, Rule 10, C. P. C. of the petitioner as adopted son of Juti eannot be accepted at this stage. This position is also not controverted by the learned counsel for the petitioner. The question that remarks for consideration is whether the petitioner as a transferee of the shares of some of the defendants is entitled to be impleaded as a party. Firstly, this point has been taken in the application which was filed on the sole ground that he was the adopted son of Juti. There is no discussion on this point in the impugned order. It is relevant to notice here that there is no application as such by the petitioner for being impleaded as a party under Order 1, Rule 10, C. P. C. The application was a composite one filed jointly by defendants 5 to 11 along with the petitioner requesting for allotment of a share to the defendants and to the petitioner and for deletion of the name of one of the plaintiffs (plaintiff No. 1). Viewed from another angle the contention is not free from difficulty. A perusal of the documents shows that the share in the property is intended to be conveyed to the transferee who is the adopted son of Juti. The question may well arise if the adoption fails or whether the deed as a whole would fail. However that is not a matter to be considered in the present proceeding since that was the subject -matter of consideration in the Court below as appears from the impugned order and sufficient material is not available to adjudicate upon the question. In any view of the case it can be said with a reasonableness, degree of certainty that the petitioner, in the facts and circumstances discussed above, cannot claim to be transferee of the defendants simpliciter and thus come within the principles enunciated in the cases referred to above for being impleaded in the final decree proceeding. In view of the discussions aforesaid, there is no merit in the revision petition which is accordingly dismissed, but in the circumstances of the case without any order for costs.