MIDNAPORE ZEMINDARY CO Vs. NARESH NARAIN ROY

JUDGEMENT

(1.) These two rules are directed against two orders, dated the 30 April 1926, of the Subordinate Judge of Nadia, by which certain persons, Bhowmiks and Chowdhuries, were added as party defendants in suit. It appears that as early as 1912, one Kumar Naresh Narain Roy instituted a suit numbered 557 of 1912 for partition of his 5 annas odd share in three mehals, mehal 814 (with which was incorporated mehal 3514), mehal 815 and mehal 3587 and it appears also that, at the time when the suit was instituted, the Midnapore Zemindary Company were, besides the plaintiffs, the only other proprietors in mehals 815 and 3587. This partition suit was fought up to the Privy Council and the plaintiff ultimately obtained a preliminary decree for partition. After the preliminary decree, but before the final decree in the partition suit was made, the Bhowmiks and the Chowdhuries acquired the interest which the Midnapore Zemindary Company had in mehals 815 and 3587 and they applied before the learned Subordinate Judge to be added as party-defendants. Their applications were granted and the learned Subordinate Judge made the orders which are complained of now and against which the present rules were obtained.

(2.) A preliminary objection was taken before us on behalf of the opposite party that the petitions of the Midnapore Zemindary Company are incompetent. This objection in our opinion is well founded. From what I have stated above, it would appear that the Bhowmiks and the Chowdhuries have acquired a certain interest which the Midnapore Zemindary Company had in mehals 815 and 3587 (which also formed the subject matters of the partition suit) and this interest the Bhowmiks and the Chowdhuries acquired after the preliminary decree for partition had been made but before any final decree was passed. That being so, the case was clearly one of devolution of an interest during the pendency of a suit and the orders, which the learned Subordinate Judge made on the 30 April 1926, were orders under Order 22, Rule 10, Civil P.C. If the Midnapore Zemindary Company had any cause to be dissatisfied with those orders, their remedy lay in preferring an appeal under Order 43, Rule 1, Clause (1) and not by invoking as they have done, the aid of Section 115 of the Code.

(3.) On the merits also the petitions of the Midnapore Zemindary Company do not stand on any better footing. The suit was for partition of the plaintiff's share in three mehals. It is undisputed that the lands in all these mehals are identical and it could not be denied that the Bhowmiks and the Chowdhuries had acquired certain interest in two of these mehals which at one time belonged to the Midnapore Zemindary Company. These being the circumstances, the preliminary decree for partition could not, in our opinion, be given effect to unless the Bhowmiks and the Chowdhuries were brought in as parties. It was said that the inclusion of the Bhowmiks and the Chowdhuries at such a late stage of the case would be prejudicial to the Midnapore Zemindary Company. But it is to be observed that the interest which the Bhowmiks and the Chowdhurios have acquired in the two mehals was no other than the interest which the Zemindary Company themselves had iii them. It is to be noted also that the Midnapore Zemindary Company at an earlier stage of the litigation had, though unsuccessfully, themselves applied to have the Bhowmiks and the Chowdhuries added as party-defendants in the case. In the circumstances, we are unable to hold that the learned Subordinate Judge when he made those orders, on the 30 April 1926, did anything that would justify us in interfering with them in the exercise of our revisional powers.