Dismissed

Brijigopal Asawa v. Jaikishan Asawa

Telangana HC25 Jan 2011CRP/3631/2010

Case brief

AI extract

What is this about?

A single judge dismissed the civil revision petition challenging the rejection of the petitioner's application to implead him as a necessary party in final decree partition proceedings. The court held that the petitioner's interest is safeguarded by his father, a respondent in the suit, and allowed participation in auction only if ordered.

What did the court decide?

Civil Revision Petition dismissed; petitioner may participate in auction if ordered.

Brijigopal Asawa Vs Jaikishan Asawa — Partition | Telangana HC (2011)

¶1

HONOURABLE SRI JUSTICE G.V.SEETHAPATHY

¶2

C.R.P.No.3631 OF 2010

Dated 25-1-2011

Between:

Brijgopal Asawa.

…Petitioner.

And:

Jaikishan Asawa and others.

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…Respondents. HONOURABLE SRI JUSTICE G.V.SEETHAPATHY

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C.R.P.No.3631 OF 2010

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ORDER:

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This Civil Revision Petition is filed against the order dated 23-7-2010 in I.A.No.384 of 2009 in I.A.No.137 of 2009 in O.S.No.1117 of 1985 on the file of the IV Senior Civil Judge, City Civil Court, Hyderabad, wherein this application filed by the petitioner herein under Order 1 Rule 10 C.P.C. seeking to implead the petitioner as respondent No.12 in I.A. No.137 of 2009, was dismissed.

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Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the record.

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The petitioner herein is the son of the 2^nd defendant and is a third party to the proceedings. The suit is filed by the respondents 1 to 6 for partition. The preliminary decree was already passed on 31-7-1998. The plaintiff filed the application for final decree proceedings in I.A.No.137 of 2009. It is stated that a commissioner was appointed for proposing the division of the properties as per the preliminary decree and the commissioner filed report with an application stating that the property is not divisible. It is also not disputed that the matter is still pending before the trial court and no orders directing the auction of the property is passed as yet.

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The petitioner herein who is the son for the 2^nd respondent seeks to come on record apprehending that the property would be put to auction and in which event, he may be dispossessed from the portion of the property, he claims to be in occupation.

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The plaintiff opposed the said application on the ground that the petitioner is neither proper nor necessary party as his interest was duly safeguarded by his father who was the 2^nd defendant and a share was also allotted in favour of D.2 and if at all the petitioner has to stake his claim for a share only in respect of the property that falls to the share of D.2 and not in respect of other shares. By the impugned order, the trial Court dismissed the said application on the ground that the petitioner’s father was a party to the proceedings as second respondent and he was also allotted a share and therefore, the petitioner is neither proper nor necessary party to the final decree proceedings.

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The impugned order does not suffer from any illegality or material irregularity. The petitioner is none other than the son of the 2^nd defendant and a share was also allotted to him and the petitioner can only claim a share in the property that pertains to the share of D.2 but not in respect of the remaining property. The petitioner apprehends that in view of the commissioner’s report, suggesting that the property is indivisible, there is every likelihood of property being put to auction between the parties and in which event, he would be put to serious hardship as he is in possession of part of the schedule property. The trial Court has not yet passed any orders directing auction of the property in view of the commissioner’s report. However, in the event of the property being put to auction on the ground that it is not divisible, the petitioner may be permitted to participate in the said auction if and when it takes place. Otherwise, there is absolutely no valid or

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justifiable ground to permit the petitioner to come on record in the final decree proceedings.

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In the result, this C.R.P. is disposed of with the above direction. No order as to costs.

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_______________________________ JUSTICE G.V.SEETHAPATHY

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Dated 25-1-2011. Dvs

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HONOURABLE SRI JUSTICE G.V.SEETHAPATHY

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C.R.P.No.3631 OF 2010 Dated 25-1-2011

Brijigopal Asawa v. Jaikishan Asawa

Case brief

What is this about?

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Brijigopal Asawa v. Jaikishan Asawa

Case brief

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What did the court decide?

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