IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2360 of 2005 MANISH KUMAR MISHRA & ORS Versus SURENDRA MISHRA & ORS ----------- 12. 4.12.2008 Heard counsel for the petitioners. In the opinion of this Court the sole issue, which was involved before the court below while adjudicating a claim of the petitioners for being impleaded as a party in a partition suit, was as to whether the petitioners were the necessary or proper party. There being no dispute that when the original partition suit, out of which the present appeal pending before the lower appellate court arises, the petitioners were not born and in fact their rights emanate on account of their being born through the second wife as one of the co-sharers during the pendency of the appeal. The petitioners, therefore, on their own showing will not be in a position to make any difference as with regard to the existing pleadings or evidence which were taken on record. It is not that the petitioners’ interest is not being represented inasmuch as his father is already a party to the suit. That being so, if the court upon 2 Surendra/ considering the entire circumstances has found the petitioners to be neither a necessary nor a proper party, this Court can not interfere with such order as the same definitely does not amount to any jurisdictional error in terms of Order-1 Rule 10(2) of the Code of Civil Procedure. The submission of the counsel for the petitioners that even if the petitioners may not have anything to do with the pleading or evidence, yet their right which has emanated on account of becoming the family members during the pendency of the appeal could be effectively safeguarded and secured only if they are impleaded as a party in the appeal, is only to be noted for its being rejected. The right of the petitioners if any in the appeal arising out of a partition suit instituted before their birth amongst the co-sharers of his father would in any event crystalise only in the share of his father, who is a contesting Respondent in the appeal. The further submission of Mr. Dwivedi, learned Senior counsel, that the father of the petitioners is illdisposed towards the petitioners has 3 again be taken with a pinch of salt because the court below has noted that it is actually the father of the petitioners, who is behind the sinister design of getting the decree against him set aside by the Appellate Court on a plea that the right of the minor petitioners were not protected by the Court below. The reasoned impugned order passed by the Appellate Court infact does not suffer from any infirmity which has only the mandate of Order-1 Rule 10(2) of the Code of Civil Procedure while rejecting the prayer for impleadment of the petitioners at the stage of appeal. That being so, this Court would not find any merit in this application. It is, accordingly, dismissed with a direction to the Court below to dispose of the ten year old appeal of the year 1998 within a period of three months from the date of receipt/production of a copy of this order. (Mihir Kumar Jha,J.) Surendra/