Signed by: SASANKA SEKHAR SATAPATHY v. Bisikesan Mahakud & Ors.

ORDER 18.04.2024

This matter is taken up through hybrid mode.

Order dated 9th December, 2023 (Annexure-2) passed by learned Civil Judge (Senior Division), Champua in CS (FD) No.65 of 2010 is under challenge in this CMP, whereby an application filed by the Petitioners under Order I Rule 10(2) CPC to be impleaded as parties to the Final Decree proceeding has been rejected.

Mr. Dash, learned counsel being authorized by Mr. Mahanta, learned counsel for the Petitioners submits that one Niti Mahakud is the daughter of Dhanu Mahakud and thus is a co-sharer in the suit property in Khata No.44 of mouza Rugudidihi. CS No.65 of 2010 was filed for partition without impleading said Niti Mahakud as a party. Petitioners/Defendant Nos.1 and 2 after receiving notice in the Final Decree came to know that the Plaintiffs had managed to obtain the Preliminary Decree by misleading the Court and distorting the facts. Said Niti Mahakud being a necessary party to the suit, should have been Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 19-Apr-2024 19:00:44 // 2 // impleaded as such. Learned trial Court while answering Issue No.4 erroneously held that Niti @ Nabata married to one Lochan Behera of village Kodagadia is not a necessary party to the suit. It is thus submitted that by not impleading her, the Preliminary Decree is vitiated. Hence, an application was filed for impleading said Niti Mahakud as a party to the Final Decree.

3.1 Mr. Das, learned counsel appearing for the Petitioners placed reliance on a decision of this Court in the case of Falcon Real Estate Private Limited Vs. Janak Kumari Devi and others [W.P.(C) Nos.11550 of 2012 and 11685 of 2012 disposed of on 27th November, 2012], wherein it is held that the suit is not culminated on passing of the Preliminary Decree. It continues till the Final Decree is drawn up. Prayer for addition of party can be entertained in a Final Decree Proceeding. He, therefore, submits that learned trial Court committed an error in rejecting the application under Order I Rule 10(2) CPC to implead said Niti Mahakud as a party to the Final Decree proceeding.

Considering the submission of learned counsel for the Petitioners and on perusal of record, it appears that learned trial, Court while answering Issue No.4, has categorically held that Niti, the sister of Bhajana Mahakud is not a necessary party to the suit. Since in the Preliminary Decree, the Court has already opined that said Niti Mahakud is not a necessary party to the suit, the prayer to implead her as a party in the Final Decree proceeding is not at all maintainable. It is submitted that assailing the Preliminary Decree an appeal (RFA No.13 of 2023) has Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 19-Apr-2024 19:00:44 // 3 // already been filed. In view of the above, the case law cited by learned counsel for the Petitioners has no application to the case at hand, as the plea of non-impletion of Niti Mahakud as a party to the suit has already been considered and rejected while answering Issue No.4. Accordingly, this Court holds that learned trial Court has committed no error in rejecting the petition to implead Niti Mahakud as a party.

Hence, the CMP being devoid of any merit stands dismissed. s.s.satapathy (K.R. Mohapatra) Judge