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2005 DIGILAW 392 (ORI)

Padmini Choudhury v. Ashok Kumar Patel

2005-06-24

B.P.DAS

body2005
JUDGMENT B. P. DAS, J. : 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 deline¬ated 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 proper¬ty 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 applica¬tion 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 plain¬tiff in place of late Judhistir Choudhury. He also filed an application on 24.6.1996 to make the decree final. 3. The present petitioners resisted the aforesaid claim and contended that the Opposite Party cannot be treated as a plaintiff as he has no locus standi to appear in the suit or file any application in the capacity of the plaintiff. They have also questioned the genuinity of the Will in favour of the present Opposite Party. 3. The present petitioners resisted the aforesaid claim and contended that the Opposite Party cannot be treated as a plaintiff as he has no locus standi to appear in the suit or file any application in the capacity of the plaintiff. They have also questioned the genuinity of the Will in favour of the present Opposite Party. During the pendency of the said application, an application was filed by one Saroj Kumar Choudhury, son of Rushi Choudhury, who was one of the defendants in the suit and died on 1995 leaving behind his widow and three sons and three daughters for allowing him to be substituted in place of deceased defend¬ant-Rushi Choudhury. The aforesaid application was allowed but the opposite party did not take any steps to implead the other heirs of Rushi Choudhury in the suit. The trial Court by its order dated 28.8.1997 after enquiring into the claim of Ashok Kumar Patel the present Opposite party and looking into the evidence on record in which the Will was tendered in evidence vide Ext. 1, allowed Ashok Kumar Patel to be substituted in place of Judhistir Choudhury, the original plaintiff. Though the peti¬tion for substitution was filed under Order 22, Rule 3 CPC, the Court below passed the impugned order in purported exercise of power under Order 22, Rule 10 CPC. 4. 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. 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. 5. The second plank of argument of the learned counsel for the petitioners is that as all the legal representatives of one of the defendants having not been brought on record, the decree is a nullity in the eye of law. Learned counsel for the petition¬ers drew my attention to various decisions of this Court as well as the Apex Court in order to convince this Court that final decree proceeding no doubt is a continuation of suit but for a limited purpose of giving effect to the preliminary decree by which the rights are already determined. (See Vol. 50 1980 CLT 337 (Full Bench), Srinibas Jena v. Janardan Jena). But before entering into the merits of the case, I cannot overlook Section 115 of the Code of Civil Procedure as it stands. After the amendment of Section 115 by Act 46 of 1999, there has been a sea of change relating to the extent of revisional jurisdiction. For exercising power under Section 115 of the Code of Civil Proce¬dure, the following circumstances are available/made out; (i) it must involve a case which has been decided by any Court subordinate to such High Court and in which no appeal lies there¬to; (ii) if such subordinate Court appears to have committed juris¬dictional error in any mode as per Clauses (a) to (c) in Sub-section (1) of Section 115; (iii) the effect of invoking the revisional jurisdiction would finally dispose of the suit or other proceeding if it is made in favour of revision-petitioner; and (iv) impugned order must not be an appealable order conferring jurisdiction of appeal either on the High Court or any Court subordinate thereto; (See Vol. 97 (2004) CLT 729 also 2003 (II) OLR 409 ). 6. 97 (2004) CLT 729 also 2003 (II) OLR 409 ). 6. In my considered opinion, the order impugned will not result in disposal of suit or other proceeding because there is every scope to protect the petitioners’ interest in the final decree proceeding. 7. During the course of hearing, Mr. S.S.Rao, learned counsel for the petitioners has submitted that the petitioners may be given liberty to approach this Court under Article 227 of the Constitution of India. As regards the aforesaid prayer, I may reiterate the words of the Apex Court in the case of Shiv Shakti Coop. Housing Society, Nagpur v. M/s. Swaraj Developers and others, 2003 (I) OLR (SC) 673 that if any remedy is available to a party under any statute, no liberty is necessary to be granted for availing the same. 8. In view of the settled position of law, the Civil Revision is not maintainable and is accordingly dismissed. No cost. Revision dismissed.