KEDAR PRASAD SINGH Vs. BIRENDRA PRASAD SINHA AND ORS.

JUDGEMENT

(1.) The petitioner has come here against the impugned order dated 13-1-1983 which is the result of an application filed by him under Order XXII, Rule 10 of the Code of Civil Procedure. According to him, the suit property devolved upon by him by gift during the pendency of the suit, on the death of the doner Kamal Mukhi Kuer (Defendant No. 1) by a registered deed of gift dated 9-12-1980. Heace the prayer to be allowed to prosecute the suit in place of defendant No. 1.

(2.) Learned counsel for the opposite party Mr. Ramnandan Prasad opposed this application on the point of maintainability basing his submissions on the wording of Order XLIII, Rule 1 (L) and submitted that since the impugned order was not appealable, a revision was not maintainable. There is merit in the submission of the learned counsel for the opposite party. It cannot be doubted and indeed an order under Order XXII, Rule 10 is ] appealable provided permission is either grant- , ed or refused. The question, however, is whether the order impugned is an order allowing or refusing permission to the petitioner in term of Order XXII, Rule 10. In my view, the order can be described as hybreed. While on the one hand the trial Judge allows the petitioners name to be substituted, in the same breath, he denies him right to prosecute the trial and merely sit there as a spectator, He should cither pass an order refusing permission which he has jurisdiction to do or he could allow the prayer and permit the petitioner to continue the suit. He has also not examined the stand of the substituted heirs of the defendant No. 1, vis-a-vis, the claim of the petitioner.

(3.) In my view he has not exercised the jurisdiction in the manner that the law required him to do and further there is really no order against which an appeal can be filed.