SITA DEVI AGARWALLA Vs. GOURAHARI DAS

JUDGEMENT

(1.) THE Order dated 7 -10 -2005 passed by the learned Civil Judge (SD), Bhadrak in T.S. No. 28 -1 of 1972 (FD) is assailed in this Writ Petition. It appears that the aforesaid Title Suit which was one for partition had been filed by the mother of present Opposite Parties 2 to 8. The said suit was dismissed. Challenging that dismissal judgment First Appeal No. 91 of 1975 was filed before this Court. This Court by judgment passed on 16 -9 -1989 allowed First Appeal and remanded the suit to the trial court for fresh disposal with certain observations. The judgment passed in the First Appeal was then challenged in AHO No. 60 of 1989. But then the said AHO was dismissed by this Court confirming the judgment passed in the First Appeal. After remand of the suit, the trial court by judgment dated 29 -11 -2001 decreed the suit and passed preliminarily decree on 7.12 -2001. Thereafter defendant No. 6 in the suit initiated final decree proceeding and the same is pending. In the final decree proceeding a petition was filed under, Order 1, Rule 10 CPC by the present petitioner praying to implead her as a party to the said proceeding. The said petition having been rejected by the impugned order the petitioner has come before this Court.

(2.) ACCORDING to the petitioner, by a registered sale deed she having purchased 20 decimals out of the suit land from defendant Nos. 1 and 5 as long back as in the year 1969 she is a necessary party to the final decree proceeding.

(3.) MR . Sarangi, learned Counsel appearing for Opposite Parties 13 to 20 opposes the prayer of the petitioner to be impleaded as a party to the final decree proceeding. According to him, the petitioner being not a necessary party to the final decree proceeding the petition filed by her under Order 1, Rule 10 CPC has been rightly rejected by the trial court. He further submitted that after a preliminary decree is passed no outsider can be permitted to be impleaded as a party to the final decree proceeding as that would amount to setting aside the preliminary decree itself. Relying on a decision of this Court in the case of Praful Kumar Sahu v. Pahali Swain and Ors. reported in 1985 (11) OLR 570, Mr. Sarangi submitted that in a suit for partition an application filed by an outsider praying for his addition as a party to the final decree proceeding claiming a share in the suit property may be maintainable only in exceptional circumstances, such as, transfer of a portion of the suit property after the preliminary decree or death of a party to the preliminary decree. In the present case no such eventuality is there. According to him the petitioner having purchased some land out of the suit property after the preliminary decree was passed, cannot be impleaded as a party to the final decree.