Strike out LR's in Final decree proceedings
imthiyaz
(Querist) 10 March 2009
This query is : Resolved
Sir, Our muslim partition suit is pending in Final decree proceedings with 11 decree holders as sharers, AS often the case in muslim partiion suits,there are large number of legal heirs of 11 decree holders close to 200,
The preliminary decree is dated year 1960, Final decree proceedings petition is filed in the year 1989 which is still pending and has adjourned for hearing next month,
After the preliminary decree some of the defendants have sold many of the suit properties without knowledge of plaintiffs, now in this pending Final decree proceedings, some how these purchasers has been made parties wrongly even though they are not bonafide purchasers.
Some of the defendants and plaintiffs legal heirs has colluded with each other and have struck as compromise deal with one of the non bonafide purchaser without the consent of court and one of the decree holder daughter who is and LR of plaintiff , and now they are telling to court they have done compromise and this survey number may be removed from decree,
for which one plaintiff daughter has objected as she have already filed any Inter locutary application to strike out LR’s of her brother who are orphaned grand children who were wrongly added as parties while filing final decree petition, As per Mohameddan law orphaned grand children are not entitle for any share ,
when there is a dispute for a share of a plaintiff that to strike out LR’s, Judge wants to go ahead with compromise even though there is an objection to compromise , and also without disposing of this Inter locutary application, According to judge LR’s cannot be strike out in final decree proceedings it is only to follow preliminary decree and personal law cannot applied here,
But these orphaned grandchildren were brought on record when filing for final decree petition as there father predeceased the decree holder after preliminary decree ie in 1976, as the original plaintiff was alive at the time of preliminary decree she died in 1986, hence there is no question of going against preliminary decree, But the judge is arguing that these LR’s cannot be striked out in final decree proceedings,
As per my knowledge it can be done using Order 1 rule 10(2) to strike out LR’s at any stage of proceedings. our advocate has done one mistake by filing an application in only 151 cpc as he was little unsure at the time of filing now he says that is not a problem as only prayer is looked upon in an IA not provision of law, Please help how to proceed as we want to strike out thse LR’s who are not entitle for share, Final decree proceedings is adjourned fornext month.
2 )Judge cannot go ahead for compromise when there is an objection by any one of decree holder, judge cannot force, is it right.
