1972 PLP 248 (SCMR)

WAHEEDUDDIN AHMAD, J.‑Petitioner N o.1 filed a suit for partition of her 1/3rd share in the house in dispute against one Karamatullah. A preliminary decree was passed in favour of petitioner No. 1 on the 22nd November 1962. Kh. Karamatullah died on the 16th December 1963. An application was moved by petitioner No. 1 under Order XXII, rule 4, C. P. C. in which she prayed that petitioners Nos. 2 and 3 be impleaded as legal heirs of Kh. Karamatullah. It was alleged that petitioner No. 2 was the widow and petitioner No. 3 was the daughter of Kh. Karamatullah. Another application was moved by the respondents who claimed to be the widow, sons and daughter of Kh. Karamatullah. They filed a reply to the application made by the petitioners and admitted that petitioner No. 3 was an heir of Kh. Karamatullah and denied that petitioner No. 2 was the widow of the deceased on the ground that she had been divorced by the deceased during his lifetime. On the pleadings of the parties, the learned trial Court framed two issues which are as under :‑ (i) Whether the petitioners are legal representatives of the deceased defendant? and (ii) Whether Mst. Saadat Begum is not the widow of the deceased ? The learned trial Court held that respondents as well as Mst. Saadat Begum were legal heirs of Kh. Karamatullah and the other respondents were his sons and daughter. The petitioner challenged this order in Civil Revision No. 135 of 1967 and a learned Single Judge of the High Court has partly accepted the revision and held that the decision of the trial Court will not be considered to be one under Order XXII, rule 4, C. P. C., it will be considered to have been .given under Order XXII, rule 10 of the Civil Procedure Code and the petitioners will have the right to file an appeal against the said order claiming condonation under sections 5 and 14 of the Limitation Act. The petitioners seek permission to file an appeal against the said order. Mr. Iftikharul Haq Khan, learned counsel for the petitioners, has contended that the view of the High Court that Order XXII, rule 10, C. P. C. applied to this case is erroneous. According to him, Order XXII, rule 4, C. P. C., applies to the present case and the High Court should have decided the dispute between the parties on merits. The contention of the learned counsel has not impressed us. The High Court was perfectly justified in coming to the conclusion that after passing a preliminary decree the rule applicable in the present case was Order XXII, rule 10, C. P. C. and the trial Court should be deemed to have passed order under that provision of law. The learned counsel for the petitioner was unable to satisfy us that this view is wrong or erroneous. In view of this, there is no force in the petition which is dismissed. Leave refused.