1. This revision petition is preferred from the judgement in C. M. A. 38 of 1976 on the file of the court of Ist Additional District Judge, Guntur. C. M. A. No. 38 of 1976 itself was filed against an order in I. A. 5676 of 1973 in O. S. 481/63 on the file of the Principal District Munsif's Court, Guntur I. A. 5676 of 1973 was filed by the present revisions petitioner under o. 22 R. 10, and S. 151 C. P. C. for adding him as the second plaintiff in the suit. That application was dismissed and hence he preferred C. M. A. 38/76 which was also dismissed by the Ist Additional District Judge, Guntur.
2. O. S. No. 481 of 1963 on the file of the Principal District Munsiff's Court, Guntur was a suit in which a preliminary decree for partition was passed. The plaintiff, Nagasuri Venkateswarlu filed i. A. 2723/65 for the passing of the final decree. It was held that the property could not conveniently partition Act was therefore, S. 4 of the Partition Act was attracted. An application was filed for the appointment of a Commissioner on 13-9-1967. The fee of the Commissioner had to be deposited, that application was dismissed for non-compliance with the order of the court as to deposit. It is stated that the order dismissing the petition on 3-11-1967 was carried in appeal . On the dismissal of that appeal, the matter was carried in second appeal which was dismissed. The result was that I. A. 2723 of 1965 stood dismissed.
3. The revision petitioner's case is that he had actually purchased the half share to which the plaintiff Venkateswarulu was declared to be entitled under the preliminary decree and that Venkateswarulu was merely a benamidar for him and that the said Venkateswarulu had executed Ex. A-1 dated 12-11-1970 in his favour relinquishing the interest in the half share in the property declared in his favour by reasons of the preliminary decree. Subsequently , Venkateswarlu died in December, 1970. The petitioner basing his claim upon Ex. A-1 styled as a relinquishment deed, sought to come on record in the final decree proceedings as the second plaintiff.
4. The said application was opposed by the defendant. Two contentions in the main were raised by the defendant in opposing the application filed by the revision petitioner under O. 22 R. 10 and s. 151 C.P.C. His first contention was that the order dated 3-11-1967 were by the application for the appointment of a Commissioner was dismissed, had become final and that the effect of that order is tantamount to a refusal to pass a final decree and that should have been appealed against and so long as that order stood, that is no suit pending and that, therefore, the application filed under O. 22 R. 10 did not lie. It was secondly urged that on the language of O. 22, R. 10 by virtue of Ex. A-1 there was not assignment, creation or devolution of any interest during the pendency of the suit. The first of the contentions viz., that there is no pending suit did not find favour with the first appellate Court but the second of the contentions viz., that O. 22 R.10 was not attracted was accepted by the first appellate Court. The latter finding resulted in the dismissal of the petition preferred by the revisions petitioner.
5. In this revision petition, it is contended by Sri T. Veerabhadrayya, for the petitioner, first that if O. 22 R. 10 is understood in the spirit in which it was enacted, the relinquishment deed Ex. A-1 will fall under one or the other of the words used viz., 'assignment' 'creation' or 'devolution' of any interest during the pendency of the suit. Even otherwise, it was contended by the learned counsel that this is case in which the inherent power of the court under s. 151 should be invoked in the ends of justice.
6. On the other side Sri. P. L. N. Sarma contended that o. 22 R. 10 as held by the Court below is not applicable and when the specific provision under O. 22 R. 10 is not applicable, it must be taken that the mater is concluded against the petitioner and recourse to S. 151 cannot be had to obtain any relief. The counsel also urged that the suit cannot be held to be pending any longer as the application for the passing of a final decree by the appointment of a Commissioner stood dismissed by reason of the default committed in payment of the Commissioner's fee.
7. I may first dispose of the contention raised by the learned counsel for the respondent that the suit is not pending. I am of the view that there is no merit in the contention. On 3-11-1967 I. A. 2723/65 which was for the passing of a final decree by appointing a Commissioner to evaluate the property was no doubt dismissed. But the dismissal of the application is not tantamount to the dismissal of the suit for partition. The law is clear that even where the suit for partition is dismissed for default before the passing of preliminary decree, another suit for partition can be filed and the earlier dismissal for default does not operate to preclude the institution of a fresh suit for partition. Where, however, a preliminary decree in a partition suit is passed, that suit must be deemed to be pending till a final decree for partition is passed. By reason of dismissal of a certain interlocutory application filed as a necessary step to the passing of a final decree, it cannot be said that a final decree has been passed determining finally the rights of parties in accordance with the preliminary decree. So, agreeing with the lower appellate court, I am of the view that notwithstanding the dismissal of I. A. 2723 of 1965 which was dismissed by reason of non-compliance with the direction as to the deposit of the Commissioner's fee, that dismissal of the application would not put an end to the continuance of the suit, because by then a preliminary decree for partition was passed.
8. The next question is whether O. 22 R. 10 is applicable by reason of the execution of Ex. A-1 by the deceased first plaintiff in favour of the revision petitioner. It may be noticed that after the death of Venkateswarlu, him legal representatives have sworn to an affidavit wherein it was stated that the plaintiff Venkateswarlu had executed Ex. A-1 in favour of the present revision petitioner, as the property for which a preliminary decree for half share was passed in favour of the plaintiff was purchased with the amount provided by the revision petitioner. The widow of the deceased plaintiff had clearly admitted that her husband was only a benamidar for the revision petitioner. That affidavit was sought to be filed in appeal as additional evidence and the lower court had received the same as additional evidence. The lower court on served that the affidavit filed by the widow of Venkateswarlu was not in any way challenged by the defendant. The affidavit was therefore, accepted and it was held that Ex. A-1 is genuine That finding is not and indeed cannot be challenged in this revision petition.
9. On a persual of the document, Ex. A-1 am of the view that though it is a document executed during the pendency of the suit --- (for it has to be held that the suit is pending as no final decree had been passed) the effect of Ex. A-1 cannot be characterised either as an assignment or a creation or devolution of any interest during the pendency of a suit. O. 22 R. 10 really is in the nature of a residuary provision under O. 22, for it begins with the words 'In other cases of an assignment, creation or devolution of any interest during the pendency of a suit....' I have no hesitation in agreeing with the lower court that O. 22 R. 10 is not attracted.
10. Still the question is whether under S. 151 the petition I. A. 5675 can be ordered S. 151 is enacted to save the inherent powers of the court to do complete justice between the parties and the prevent abuse of the process of court. The very language used in the section shows that nothing in the Code i. e., nothing either in the sections or in the orders and rules should be deemed to limit or otherwise affect the inherent powers of the Court. The power is, therefore, quite independent of anything contained in the Code and it may be exercised for the ends of justice or to prevent the abuse of the process of court. Of course, it is well settled that where the Code itself provides for a particular situation or contingency or points out the procedure to be adopted and if the case falls within the ambit of the provisions contained in the Code S. 151 which saves the inherent powers of the Court, cannot be resorted to . As in this case the particular provision relied upon viz., O. 22 R. 10 C. P. C. is not applicable, for the case does not fall under the express language of that rule, if the ends of justice require it, there is no impediment in the way of the Court to act under S. 151 and give relief to the revision petitioner. It is proved in this case that the revision petitioner is the real owner of the property and the deceased-plaintiff was only a name-lender or a benamidar. Ex. A-1 only recognises that the true owner of the property for which a preliminary decree for a half share has been passed in favour of the plaintiff, is the revision petitioner. If the right of the petitioner to come on record as the second plaintiff is not recognised, in view of the fact that the suit must be deemed to be pending, the suit must and will be kept pending for ever. This is clearly a case where the inherent powers of the Court must, for the ends of justice, be exercised in favour of the petitioner by ordering the petition and showing him and the second plaintiff in the cause title.
11. It may also be noticed that order the petition with a prayer ordering the petition with a prayer such as the one contained herein, is not prohibited by anything contained in the Code. That being so, recourse to S. 151 can be had and the relief prayed for should be granted.
12. In this view of the matter, I set aside the judgement under revision and allow the Revision Petition by ordering I. A. 5676 of 1973 as prayed for. With regard to the costs, I direct that each party will bear its own costs throughout.
13. Petition allowed.