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2018 DIGILAW 4237 (MAD)

Natarajan v. Murugesan

2018-11-15

M.S.RAMESH

body2018
ORDER : 1. The challenge in the present revision petition is rejection of the petitioners' application filed under Order 1 Rule 10 of the Code of Civil Procudure, seeking to implead them as defendants in a partition suit. 2. The brief facts of the case is that the suit properties had originally belonged to one Kuppusamy Chetti, who had obtained a decree in his favour in O.S.No.58 of 1972, which is a suit for recovery. In the execution proceedings taken therein, the sale certificate was issued in favour of one Venkatesa Chetti, from whom the petitioners' mother, namely, Govindammal, had purchased the suit properties on 28.06.1984. When there was an apprehension that one Munusamy and others were attempting to disturb the possession of Govindammal, she had filed a suit in O.S.No.54 of 1992 seeking for declaration of title and for permanent injunction. While the suit was pending, the first respondent herein had filed suit for partition in O.S.No.63 of 1996, in which he had impleaded his father and brothers along with Govindammal and her husband Muthu. After the partition suit was filed, the suit preferred by Govindammal for declaration in O.S.No.54 of 1992 came to be decreed in her favour on 18.09.1997. The said decree has become final and the title of the suit properties were declared to be in favour of Govindammal. 3. While that being so, an ex parte preliminary decree came to be passed in the suit for partition preferred by the first respondent herein. In order to set aside the ex parte decree, an application in I.A.No.1688 of 2005 was filed by one Muthu and Govindammal, which was dismissed vide order dated 21.11.2007 and the civil revision petition and the review application filed by them against the same also came to be dismissed. In this background, the petitioners herein had chosen to file an application in I.A.No.546 of 2017 under Order 1 Rule 10 CPC seeking to implead themselves as party respondents to the final decree proceedings. Subsequently, challenging the preliminary decree, the petitioners have filed an appeal along with an application in I.A.No.19 of 2017 to condone the delay in preferring the appeal. The impleading application came to be rejected by an order dated 06.06.2018, which is under challenge in the present revision. 4. Subsequently, challenging the preliminary decree, the petitioners have filed an appeal along with an application in I.A.No.19 of 2017 to condone the delay in preferring the appeal. The impleading application came to be rejected by an order dated 06.06.2018, which is under challenge in the present revision. 4. The main grounds for rejection of the impleading application is that the petitioners herein had failed to file an appeal against the preliminary decree and as such, they cannot question the preliminary decree itself and since this Court had rejected their application filed to set aside the ex parte preliminary decree, they are not deemed to be necessary parties to the final decree proceedings. 5. Mr. Sathia Chandran, learned counsel appearing for the petitioners submitted that after this Court had rejected their application seeking to set aside the ex parte preliminary decree, they had also preferred an appeal against the preliminary decree before the Subordinate Court, Harur, though with a delay and the same is pending. He would further submit that until a finality is attained through final decree proceedings, a suit for partition is deemed to be pending on the file of the trial Court till such time. As such, there is no impediment on the part of the petitioners herein to have them impleaded as parties to final decree proceedings. 6. Learned counsel for the first respondent on the other hand submitted that there was no infirmity in the order under challenge and that since the petitioners were unsuccessful in challenging the ex parte preliminary decree upto the High Court and a review petition as against the same was also dismissed, by placing reliance on the observations made by this Court in the revision petition as well as review petition, the learned counsel for the first respondent submitted that the trial Court had rightly rejected the petitioners' request to be impleaded in the final decree proceedings. 7. I have given careful consideration to the rival submissions made by the learned counsel for the parties. 8. Before adverting to the facts of the present case, it would be relevant to have a glance on the legal aspects involved in the present case. The jurisdiction of the Court to implead the parties emanates from Order 1 Rule 10 CPC. I have given careful consideration to the rival submissions made by the learned counsel for the parties. 8. Before adverting to the facts of the present case, it would be relevant to have a glance on the legal aspects involved in the present case. The jurisdiction of the Court to implead the parties emanates from Order 1 Rule 10 CPC. Under the said provision, the Courts are empowered to implead any party, either suo motu or when an application is filed at any stage of the proceedings. What is further contemplated under Order 1 Rule 10 is that such impleadment would be impediment to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. 9. This Court, in a decision rendered in S.Pitchai vs. Ponnammal and others, held that a suit for partition would attain finality only after passing of a final decree and that such a partition suit would be deemed to be pending on the file of the trial Court till a final decree is passed on the basis of the preliminary decree. This legal proposition has also been followed and laid in various other judgments of this Court. 10. In this background, it is seen that the suit properties were originally purchased by Govindammal, who is the mother of the petitioners herein, on 28.06.1984. The said Govindammal also had the benefit of a judgment and decree of declaration of title over the suit properties in O.S.No.54 of 1992. After the suit came to be decreed, the present ex parte preliminary decree for partition was passed on 03.08.2000. When Muthu and Govindammal were set ex parte in the partition suit, they made attempts to set aside the ex parte decree through various proceedings upto a review petition before this court. Since they were unsuccessful in all these proceedings, they had filed an appeal challenging the preliminary decree, which is also pending. As such, the finding of the trial Court that the preliminary decree has not been challenged has now been taken care of in view of the appeal being filed. 11. Since they were unsuccessful in all these proceedings, they had filed an appeal challenging the preliminary decree, which is also pending. As such, the finding of the trial Court that the preliminary decree has not been challenged has now been taken care of in view of the appeal being filed. 11. As observed earlier, even when a preliminary decree is passed, a suit for partition would be deemed to be pending in the trial Court till a final decree is passed and as such, the phrase in Order 1 Rule 10 CPC that an application for impleadment can be filed “at any stage of the proceedings” would also include the application which is filed after the passing of the preliminary decree. As such, there is no illegality on the maintainability of the said application for impleadment. 12. Considering the facts of the present case, this Court is of the view that the petitioners herein are necessary parties to the final decree proceedings. 13. In the light of the above observations, the order and decree dated 06.06.2018 passed in I.A.No.546 of 2017 in I.A.No.357 of 2008 in O.S.No.579 of 2008 on the file of District Munsif Court, Harur, is set aside and consequently, the petitioners herein are directed to be impleaded as party defendants in the original suit as well as to the final decree proceedings. The Civil Revision Petition is allowed accordingly. No costs. Consequently, C.M.P.No.12583 of 2018 is closed.