- Bookmark
- Share
- CaseIQ
Vasudeva Kallurao v. Ramachandra Rao And Another
Factual and Procedural Background
The civil revision petition arises from final decree proceedings in a partition suit filed by the plaintiff against his brother. The trial court allowed an interim application in the final decree proceedings to implead the mother of the plaintiff and defendant as a supplemental second respondent. The mother claimed maintenance from the plaintiff and defendant and asserted a charge over the family properties subject to the partition suit. The trial court held that the mother's maintenance claim could be considered in the final decree proceedings and permitted her impleading.
Legal Issues Presented
- Whether an application for impleading under Order 1 Rule 10 of the Code of Civil Procedure, 1908, lies in the final decree proceedings of a partition suit after the preliminary decree has been passed, even if the person sought to be impleaded would have been a proper party.
Arguments of the Parties
Petitioner's Arguments
- After the preliminary decree, no third party can be impleaded under Order 1 Rule 10 of the CPC; the second respondent should file a fresh suit instead.
- The second respondent should have sought impleading before the preliminary decree, as the preliminary decree constitutes a final decision as per the Supreme Court in Venkata Reddy v. Pethi Reddy.
- Allowing parties to be added after the preliminary decree would affect the finality of that decree.
- Applications for addition of parties post-preliminary decree are only allowed in exceptional circumstances such as death or transfer of parties (Baman Chandra v. Balaram).
- A party may only be added if they are necessary to the suit or without whom the suit cannot be completely decided; mere incidental effect is insufficient (Muslim Wakf Board v. Municipal Board, Banarsi Dass v. Panna Lal).
- The phrase "at any stage of the proceedings" in Order 1 Rule 10(2) refers to stages before the passing of a decree (Nemasa Gangasa v. Motisa).
Respondents' Arguments
- The impleading of the mother does not require reopening the preliminary decree.
- Though the mother is not a sharer, she is a proper and necessary party as a maintenance charge holder.
- The trial court's order allowing impleading was discretionary and should not be interfered with in revision (Kunchelan v. Damodaran).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Venkata Reddy v. Pethi Reddy (AIR 1963 SC 992) | Definition of finality of a preliminary decree and its res judicata effect. | Supported the proposition that a preliminary decree is a final decision on matters covered by it and not a tentative order. |
| Baman Chandra v. Balaram (AIR 1966 Orissa 160) | Exceptional circumstances for adding parties after preliminary decree (death or transfer). | Established that addition of parties post-preliminary decree is generally impermissible except in specific exceptions. |
| Muslim Wakf Board v. Municipal Board (AIR 1960 MP 249) | Principle that necessary parties must be joined for complete adjudication. | Reinforced that only necessary parties can be added, not those incidentally affected. |
| Banarsi Dass v. Panna Lal (AIR 1969 Punjab 57) | Conditions under which parties can be added under Order 1 Rule 10(2). | Clarified that parties cannot be added merely to avoid separate litigation on collateral matters. |
| Nemasa Gangasa v. Motisa (AIR 1935 Nagpur 64) | Interpretation of "at any stage of the proceedings" in Order 1 Rule 10(2). | Held that parties cannot be added after the preliminary decree as it is a final decision. |
| Kunchelan v. Damodaran (1960 KLT 262) | Discretionary power of the trial court in allowing impleading. | Respondents relied on this to argue non-interference in discretionary orders. |
Court's Reasoning and Analysis
The court analyzed the scope of Order 1 Rule 10(2) of the Code of Civil Procedure, which permits striking out or adding parties "at any stage of the proceedings." It emphasized that in partition suits, the preliminary decree constitutes a final decision on matters covered by it and cannot be reopened casually. The court noted that while the rule's language is broad, the finality of the preliminary decree limits the addition of parties after its passing except in narrowly defined exceptional circumstances such as death or transfer of a party. Since the mother was neither a transferee nor a legal representative of any party and did not seek impleading before the preliminary decree, her application to be impleaded after the decree was not permissible. The court held that allowing her impleading would improperly reopen the final decision embodied in the preliminary decree, which is not allowed. Therefore, the trial court erred in permitting the impleading application. The proper remedy for the mother is to file a separate suit, leaving her rights unaffected by the partition suit's decree.
Holding and Implications
The court set aside the order allowing the impleading of the mother as a supplemental second respondent and allowed the civil revision petition. There was no order as to costs.
The direct effect is that no party can be impleaded in the final decree proceedings of a partition suit after the preliminary decree except under exceptional circumstances such as death or transfer of a party. This decision reinforces the finality of preliminary decrees and restricts the scope of impleading parties post-preliminary decree. No new precedent was established beyond applying existing principles to the facts.
1. The question that arises for consideration in this civil revision petition is whether in the final decree proceedings in a suit for partition an application for impleading will lie under 0. 1 r. 10 of the code of civil procedure, 1908 even if the person sought to be impleaded would have been a proper party. The plaintiff in o. S. No. 59 of 1973 on the file of the subordinate judge, Kasaragod is the petitioner in this civil revision petition. The above suit was filed by the plaintiff for partition and the defendant is none other than his brother. The grievance of the petitioner is against the order of the learned subordinate judge allowing an interim application filed in the final decree proceedings by the mother of the plaintiff and the defendant to get herself impleaded as the sunplemental 2nd respondent in the final decree application the case of the mother in the application for impleading is that the plaintiff and the defendant are liable to pay maintenance to her and she has got a charge for the same over the family properties which are the subject matter of the suit for partition. The trial court came to the conclusion that the mother's claim for maintenance can also be considered in the final decree proceedings and impleaded her as supplemental 2nd respondent in the application for final decree.
2. Shri u. P. Kunikullaya, Learned counsel for the plaintiff - petitioner, Contends that after the preliminary decree no third party can be impleaded under 0. 1 r. 10 of the code of civil procedure. According to the learned counsel, The 2nd respondent is free to file a fresh suit and that is what she should resort to. It is further contended that if the 2nd respondent wanted to get herself impleaded in the partition suit she should have moved the court before the passing of the preliminary decree, Learned counsel then points out that the preliminary decree for partition is 'final decision'. In this connection, Reference is made to venkata reddy v. Pethi reddy (air. 1963 s c 992). In para. 6 of the above decision the supreme court has said:
"a decision is said to be final when, So far as the court rendering it is concerned, It is unalterable except by resort to such provisions of the code of civil procedure as permit its reversal, Modification or amendment similarly, A final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the code a preliminary decree passed. Whether it is in a mortgage suit or a partition suit, Is not a tentative decree but must, In so far as the matters dealt with by it are concerned, Be regarded as conclusive no doubt, In suits which contemplate the making of two decrees - a preliminary decree and a final decree the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made, The decision of the court arrived at the earlier stage also has a finality attached to it s 97, Civil p. C. Clearly indicates that as to the matters covered by it, A preliminary decree is regarded as embodying the final decision of the court passing that decree."
learned counsel then contends that if parties are added after the passing of the preliminary decree it. Would affect the determination in the preliminary decree which has become final. In this connection, Reference is made to baman chandra v. Balaram (air. 1966 orissa 160) wherein it is said:
"even if other conditions under or. 1, R. 10 (2) are fulfilled, An application for addition of parties cannot be allowed after the preliminary decree is passed except in certain exceptional circumstances, Such as, Impletion of transferees subsequent to the preliminary decrees or death of parties whose rights were carved out in the preliminary decree".
learned counsel then contends that a plaintiff is at liberty to frame his suit in any way and if a third party is a necessary defendant the suit will be dismissed: otherwis -, The case would be decided on the merits so far as the parties before the court are concerned. In this connection, Reference is made to muslim wakf board v. Municipal board (air. 1960 m. P. 249) reference is then made to banarsi dass versus panna lal (air. 1969 punjab 57) where in dealing with the circumstances under which addition of parties can be made, Sarkaria j. (as he then was) has said:
"under sub - para (2) of 0. 1, R. 10, A person may be added as a party to a suit in two cases only, I. E., When he ought to have been joined and is not so joined, I. E. When he is a necessary party, Or, When without his presence the questions in the suit cannot be completely decided. There is no jurisdiction to add a party in any other case merely because that would save a third person the expense and botheration of a separate suit for seeking adjudication of a collateral matter, Which was not directly and substantively in issue in the suit into which he seeks intrusion. A person may not be added as a defendant merely because he would be incidentally affected by the judgment."
the learned judge has further said that as a rule the court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition and against whom he does not claim any relief. Learned counsel refers to the words 'at any stage of the proceedings' in o. 1 r. 10 (2) of the code; and contends that 'at any stage' mentioned in the rule is a stage before the passing of a decree. In support of this contention reference is made to nemasa gangasa v. Motisa (air. 1935 nagpur 64) wherein it is said:
"where subsequent to preliminary decree in a partition suit, An application is made to implead certain persons as parties who would have been proper parties if they were joined before the preliminary decree, They cannot be joined after the preliminary decree, As they are not bound by it nor can the court ignore it and rip up the case again to a point anterior to that decree, Especially when no injustice will be done by not adding them: 0. 1, R. 10 refers to any stage of proceeding not concluded by a decree."
3. Shri k. P. V. B. Ejman, Learned counsel for respondents 1 and 2 points out that by the impleading allowed in this case no necessity to reopen the decision by the preliminary decree arises. Learned counsel contends that though the applicant is not a sharer, She is a proper and necessary party as a maintenance bolder. Learned counsel then contends that at any rate the order impugned being a purely discretionary order of the trial court is not to be interfered in revision. In support of this contention reference is made to kunchelan v. Damodaran (1960 klt. 262).
3. Order i r. 10 (2) of the code of civil procedure, 1908 reads:
"10,2). Court may strike out or add parties the court may at any stage of the proceedings, Either upon or without the application of either party, And on such terms as may appear to the court to be just, Order that the name of any party improperly joined, Whether as plaintiff or defendant, Be struck out, And that the name of any person who ought to have been joined, Whether as plaintiff or defendant, Or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, Be added."
though the words used in the rule are 'at any stage of the proceedings', It cannot be said that even one who is a proper party or a necessary party to the suit can insist that he should be allowed to come in after the decree under all circumstances. Even in suits like partition where a preliminary decree and a final decree are to be passed, Unless set aside in appropriate proceedings, The decision in the preliminary decree also will be a final one. So, In such, Cases also after the preliminary decree, Impleading can be made only under exception 1 circumstances. One such circumstance will be the death of a party after the preliminary decree. Another circumstance can be a transfer after the preliminary decree. In the above cases, The legal representatives as well as the transferee or transferees, As the case may be, Cannot but be impleaded by impleading them no question of reopening the preliminary decree also arises as they are simply stepping into the shoes of the party who died or the transferor, As the case may be. In any other case, If one is allowed to come in after the preliminary decree, Even though he is a person who has interests in the subject - matter of the litigation, Unless a preliminary decree is reopened, No purpose will be served because by that the preliminary decree cannot be reopened this is something which is not possible also. Having not chosen to get herself impleaded before the preliminary decree, As far as the suit in question is concerned, The petitioner has missed the bus. The only course open to her is to file a fresh suit. It goes without saying that the rights, If any she has got, Cannot at all be affected by a decree in a suit in which she is not made a party. Admittedly, The petitioner in this case is not a transferee from a party to the suit or a legal representative of any party. This being so, The court below was clearly in the wrong in the exercise of its jurisdiction in allowing the impleading application.
4. In the result, The order impugned is set aside and the civil revision petition is allowed. There will be no order as to costs.
The address is not valid
Most likely causes:
There might be a typing error in the address.
If you clicked on a link, It may be out of date.
What you can try:
Retype the address.
Alert