KAPILDEO SINGH Vs. RAMRAJ SINGH

JUDGEMENT

(1.) This revision is directed against the order dated 1.5.99 passed by the learned Additional District Judge IVth, Aurangabad, in Title Appeal No. 31/93.

(2.) The relevant facts are that the plaintiff-opposite parties filed Title Partition Suit No. 20 of 1987/40 of 1990, In this suit, preliminary decree was passed, subsequently there was an appeal by the defendant, revisionists. During the pendency of this appeal, there was a petition by the plaintiff-opposite party for addition of one Sharda Devi as party to the appeal. The learned Additional District Judge by the impugned order allowed this petition and he also directed framing of a fresh issue regarding the property as given in Schedule III of the plaint to effect "Whether the property of Schedule 3 is the self-acquired property of Sharda Devi or it was acquired from the joint family fund". It was submitted by the revisionists that similar petition for addition of the party was rejected earlier by order dated 4.6.98 and hence the learned Addl. District Judge was not justified in reviewing this order and, moreover, he has wrongly interpreted Order XLI, Rule 20 of the CODE OF CIVIL PROCEDURE, 1908, while allowing the petition of plaintiff-opposite parties.

(3.) On perusal of the impugned Order, I find that the learned Additional District Judge, of course, referred to a petition of the plaintiff-opposite parties regarding addition of party to the appeal in the order dated 4.6.98 and he stated that the earlier petition for addition of the party was filed under Order VI, Rule 17 of the CODE OF CIVIL PROCEDURE, 1908, whereas, it should have been preferred under Order I, Rule 10 and earlier petition was rejected on technical ground that the petition was filed under a wrong provision. Therefore, the learned Additional District Judge held that he had power to review this order and he had also power to add party to the appeal under Order XLI, Rule 20 of the CODE OF CIVIL PROCEDURE, 1908 The learned Additional District Judge has further referred to Section 107 of the CODE OF CIVIL PROCEDURE, 1908 as also Order XLI, Rules 20, 23-A&25, CODE OF CIVIL PROCEDURE, 1908