O.P.Garg, J. - (1.) The petitioner was the defendant in Suit No. 202 of 1990 which was filed for the relief of partition. It so happened that the plaintiff of suit deleted the name of the petitioner from the array of the defendants. A preliminary decree was passed. An appeal has been preferred against the preliminary decree which is pending before the District Judge. During the pendency of the appeal the petitioner who was earlier defendant moved an application for impleadment as one of the respondents in appeal. The learned appellate Court has directed that the application of the petitioner for impleadment shall be heard and decided after the question of maintainability is determined.
(2.) Sri Rajesh Tandon pointed out that the appellant as well as the respondents in the appeal are in collusion and it is likely that they may allow the appeal to be withdrawn or get it dismissed on the ground of non-maintainability with the result serious prejudice to the rights of the petitioners shall be caused.
(3.) After having heard the learned Counsel for the petitioner and taking into consideration the material on record, I find that the impleadment of the petitioner may be necessary. This question should be considered by the District Judge first. If the petitioner is impleaded as one of the respondents to the appeal, there can be possibly no objection in deciding the question of maintainability of the appeal. The writ petition is accordingly disposed of with the direction that the District Judge shall first pass the order on the application for impleadment 58-A of the petitioner and thereafter he shall proceed with merits of the case. Petition Allowed.;