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2015 DIGILAW 631 (ORI)

SK. SADIK v. MIR ABDUL KALAM

2015-11-17

BISWANATH RATH

body2015
JUDGMENT : Biswanath Rath, J. - This Civil Miscellaneous petition is at the instance of third party/petitioner challenging an order dated 18.09.2014 in C.S. No. 4/85 of 1971/1968-1 (final decree) passed by Civil Judge (Senior Division), Balasore rejecting an application under Order 1, Rule 10 read with Order 22, Rule 10 (1) of the Civil Procedure Code filed by the petitioner. 2. Short recitals involved in the case is that the opposite Party Nos. 4 to 22 as plaintiffs instituted C.S. No. 4/85 of 1971/1968-1 pending now in final decree proceeding in the court of Civil Judge (Senior Division), Balasore impleading rest of the opposite parties as defendants praying therein for partition of suit schedule properties and for other consequential reliefs. The suit was decreed vide judgment and decree dated 08.09.1975 and 16.09.1975 respectively. In appeal, this Court vide judgment dated 24.6.1993 in RFA No. 195 of 1975 modified the judgment and the judgment and decree is now pending in final decree proceeding. 3. During pendency of the Final Decree Proceeding, the present petitioner claiming that he has purchased a part of the disputed property from one Abdul Rahat-Opp.Party. No. 30 by registered sale deed No.325 dated 21.04.2009 and it is on this basis the petitioner wanted to be a party in the Final Decree proceeding in order to protect his property by filing an application under Order 1, Rule 10 CPC read with under Order 22, Rule 10 (1) of the Civil Procedure Code. Contesting the said application, the present Opp.Party Nos. 1 to 3 filing objection inter-alia contended therein that since the present petitioner purchased the land in violation of the order of statusquo continuing in the matter, the so called purchase is illegal for the reasons that his vendor had no right to sale the property at that point of time as the disputed property was under an order of statusquo. 4. After hearing the parties, the trial court rejected the application by its order dated 18.09.2014. The order of rejection by the trial court is impugned herein in this Civil Miscellaneous Petition, an application under Article 227 of the Constitution of India. 5. Mr. Mishra, learned counsel for the petitioner and Mr. Rath, learned counsel appearing for Opp.Party Nos. 1 to 3 while making their submissions repeated their respective submissions already made in the court below. The order of rejection by the trial court is impugned herein in this Civil Miscellaneous Petition, an application under Article 227 of the Constitution of India. 5. Mr. Mishra, learned counsel for the petitioner and Mr. Rath, learned counsel appearing for Opp.Party Nos. 1 to 3 while making their submissions repeated their respective submissions already made in the court below. In view of the recording of the submissions in the lower court proceeding, this Court is not inclined to record the same to avoid repetition of the submissions of the respective parties. 6. There is no denial to the fact that the suit between the Opp.Parties has been concluded by a judgment of this Court in RFA No. 195 of 1975 and it is this judgment has been put to Final Decree proceeding. The petitioner filed an application under Order 1, Rule 10 read with Order 22, Rule 10 (1) of the Civil Procedure Code in the Final Decree proceeding itself. It is apparent from the case record that the present petitioner is claiming right through Mir Abdul Rahat (Opp.Party. No.30) who was defendant No.11 in the trial court below. The matter is pending at the stage of Final Decree proceeding and there is no allotment of portion of suit land in favour of either parties to the suit as yet. In absence of allotment of the suit property in favour of respective parties, it is too early to claim on the part of a third party purchaser that he has any right over any particular part of the property except claiming a right of property through a Registered sale deed, fate of which is to be guided by the ultimate outcome in the Final Decree Proceeding. Law is fairly well settled that the right of a third party has to flow through his vendor and such right can be more clear after the final allotment of the properties in favour of the respective parties and the fate of this vendor is to be guided by the ultimate judgment passed by this Court in RFA No. 195 of 1975. Appearance of a third party at this stage of the matter, no case for improving his case any further and his fate is already shield by the final out come in the R.F.A. No.195 of 1975 which has become final in the meanwhile. 7. Appearance of a third party at this stage of the matter, no case for improving his case any further and his fate is already shield by the final out come in the R.F.A. No.195 of 1975 which has become final in the meanwhile. 7. Under the circumstances, this Court is of the view that no application under Order 1, Rule 10 read with Order 22, Rule 10 (1) of the Civil Procedure Code is maintainable during pendency of Final Decree proceeding. As such, this Court does not find any illegality or impropriety in the impugned order in exercise of its power under Article 227 of the Constitution of India. 8. The Civil Miscellaneous Petition has no merit and thus stands dismissed. However, there is no order as to cost. Final Result : Dismissed