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Surampalli Ramamurthi Vs. Surampali Reddy and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in60Ind.Cas.144
AppellantSurampalli Ramamurthi
RespondentSurampali Reddy and ors.
Cases Referredand Tommenidi Adeyya v. Chelukuri Venkatarayudu
Excerpt:
civil procedure code (act v of 1908), order i, rule 10 - partition, suit for, of moveables and immoveables--suit, withdrawal of, in respect of moveables, effect of--court, power of, to transpose parties. - - the suit was clearly still going on and that was not one suit for partition of immoveable and another for that of moveable and it cannot be said that, by the withdrawal' by the plaintiff of his claim for moveable, the suit name to an end......impugned on the ground that a preliminary decree hiving been passed by consent in respect of the immoveable and the plaintiff having withdrawn his claim with regard to the moveable; there were no proceedings during a stage of which the judge could transpose the parties as required by order i, rule 10, in my opinion, this contention cannot be upheld. the order of the subordinate judge says (paragraph 4): 'before the matter regarding partition of immoveable was bnally disposed of,' the plaintiff put in his petition for leave to withdraw his claim to the moveable. the suit was clearly still going on and that was not one suit for partition of immoveable and another for that of moveable and it cannot be said that, by the withdrawal' by the plaintiff of his claim for moveable, the suit name.....
Judgment:

Odgers, J.

1. The order of the Sub-ordinate Judge is sought to be impugned on the ground that a preliminary decree hiving been passed by consent in respect of the immoveable and the plaintiff having withdrawn his claim with regard to the moveable; there were no proceedings during a stage of which the Judge could transpose the parties as required by Order I, Rule 10, In my opinion, this contention cannot be upheld. The order of the Subordinate Judge says (paragraph 4): 'before the matter regarding partition of immoveable was Bnally disposed of,' the plaintiff put in his petition for leave to withdraw his claim to the moveable. The suit was clearly still going on and that was not one suit for partition of immoveable and another for that of moveable and it cannot be said that, by the withdrawal' by the plaintiff of his claim for moveable, the suit name to an end. It seems to me that the very basis of allowing plaintiff to withdraw was to allow the eighth to tenth defendants to become plaintiffs in his stead, and so to allow the shares of the defendants already ascertained with regard to the immoveable to be proceeded with, with regard to the moveable. The case in Edulii Muncherji Wacha v. Vullebhoy Khari bhoy 7 B. 167 seems to support this view; also those in Shivmurteppa v. Virappa 24 B. 128and Tommenidi Adeyya v. Chelukuri Venkatarayudu 23 Ind. Cas. 392.

2. The order of the Subordinate Judge was right and the civil revision petition must be dismissed with costs (two sets),


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