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Sajani Bewa and anr. Vs. Kartik Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 77 of 1980
Judge
Reported inAIR1981Ori157; 52(1981)CLT9
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantSajani Bewa and anr.
RespondentKartik Sahu and ors.
Appellant AdvocateM. Patra, Adv.
Respondent AdvocateB.K. Das and ;R.C. Patnaik, Advs.
DispositionPetition dismissed
Cases ReferredBaman Chandra Acharya v. Balaram Acharva.
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........for reviewing the decree at this stage on the basis of the application of amendment under order 6, rule 17, code of civil procedure. strictly speaking, an application under order 6, rule 17 of the code could not be maintained for the amendment of the decree. 4. there are some instances where after the preliminary decree under special circumstances new properties have been brought into the hotchpot. they are, however, not cases of the present type where too many items of property have been sought to be added on the basis of claim of shares different from the decree. i am inclined to conclude that the rule in the case of baman chandra acharya v. balaram acharva. ilr (1965) cut 799 : (air 1966 ori 160), should be applied and therefore, the amendment has been rightly refused. 5. this.....
Judgment:
ORDER

R.N. Misra, C.J.

1. This application under Section 115 of the Code of Civil Procedure is directed against the order of refusal of amendment of the plaint and the preliminary decree.

2. Plaintiffs who are petitioners filed Title Suit No. 67 of 1955 for partition and obtained a preliminary decree on 29-4-1961 declaring their 1/8 shares in the property. In course of the final decree proceedings, after the Commissioner was appointed to work out the preliminary decree, an application under Order 6, Rule 17 of the Code of Civil Procedure was made whereby plaintiffs asked for insertion of a large extent of property in which they claimed their share to be different from l/8th. After hearing parties, the trial court has rejected the application and this revision impugns the rejection.

3. As would appear from the application for amendment, plaintiffs soughtfor deletion of certain properties from the hotchpot and wanted new properties to be added. The preliminary decree in a suit for partition ordinarily settles the hotchpot, i.e., the propertiesto be partitioned and declares the shares of the parties Actual allotment in terms of the preliminary decree is left to be done at the final decree stage. The amendment in the present case has been asked for twentyfour years after the institution of the suit and also eighteen years after the preliminary decree. In regard to the new property, plaintiffs have claimed a higher share. This would require almost a re-trial of the suit. Allowing the amendment at this stage would necessarily require rectification of the decree. The preliminary decree has become final eighteen years back. There can be no justification for reviewing the decree at this stage on the basis of the application of amendment under Order 6, Rule 17, Code of Civil Procedure. Strictly speaking, an application under Order 6, Rule 17 of the Code could not be maintained for the amendment of the decree.

4. There are some instances where after the preliminary decree under special circumstances new properties have been brought into the hotchpot. They are, however, not cases of the present type where too many items of property have been sought to be added on the basis of claim of shares different from the decree. I am inclined to conclude that the rule in the case of Baman Chandra Acharya v. Balaram Acharva. ILR (1965) Cut 799 : (AIR 1966 Ori 160), should be applied and therefore, the amendment has been rightly refused.

5. This revision application is accordingly dismissed with costs. Hearing fee Rs. 50/- (fifty).


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