Orissa High Court
M/S. S.S. Aluminium Pvt. Ltd vs Canara Bank on 18 November, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.M.P. No.653 of 2023
(An application under Article 227 of the Constitution of India)
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M/s. S.S. Aluminium Pvt. Ltd.,
Balasore & Another
...... Petitioners
-Versus-
Canara Bank, Sahadev Khunta Branch,
Balasore & Others
...... Opp. Parties
Advocate(s) appeared in this case:-
_______________________________________________________
For Petitioners : Mr. M. Mohanty, Advocate
For Opp. Parties : Mr. B.N. Udgata, Advocate
___________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th
18 November, 2025
SASHIKANTA MISHRA, J.
Defendant Nos.3 and 4 in C.S. No.727 of 2022
pending before the learned Senior Civil Judge, Jaleswar
are the petitioners in the present writ application wherein,
they question the correctness of order dated 13.03.2023
passed by the said Court directing impletion of the present
Opposite Party No.1 as a defendant in the suit.
2. The facts are as follows:-
The above-mentioned suit has been filed by the
present Opposite Party No.2 as plaintiff for partition of
schedule B to J properties, said to be ancestral properties
of the parties. The plaintiff-Amita Rani Mohanty and
defendant No.3 Jadabendra Pradhan are the children of
Laxmikanta Pradhan (defendant No.1) and Arati Pradhan
(defendant No.2). Schedule B property is recorded in the
name of defendant No.4. Schedule C to H properties are
recorded in the name of defendant No.3 which are said to
have been acquired out of ancestral family funds.
Schedule I and J properties are recorded in the name of
defendant No.2, also said to have been acquired out of
ancestral family funds. During pendency of the suit, the
present Opposite Party No.1 i.e., (Canara Bank) filed
application on 21.12.2022 for being impleaded as a party
to the suit under Order 1 Rule 10 of CPC.
3. The plaintiff filed objection that the schedule
properties have not yet been partitioned by metes and
bounds for which each and every co-sharer has right over
every inch of the properties. The trial Court however,
allowed the petition by holding that the Opposite Party
No.1 has an interest in the suit properties. Defendant
Nos.3 and 4 (present petitioners) not having appeared in
the suit pursuant to summons contended that they had
no scope to contest the intervention petition but having
come to know about such fact from the plaintiff, obtained
copy of the impugned order and have filed the present writ
application impugning the same.
4. Heard Mr. M. Mohanty, learned counsel
appearing for the petitioner-defendant Nos.3 and 4 and
Mr. B.N. Udgata, learned counsel appearing for Opposite
Party No.1(Bank).
5. Mr. Mohanty would argue that the intervener not
being a co-sharer cannot be impleaded as a party in a suit
for partition as it would change the nature, character and
scope of the suit. The petitioner-defendants not having
been heard at the time of hearing of the intervention
petition may be given an opportunity of being heard
afresh. Mr. Mohanty further argues that even otherwise,
the objection of the plaintiff with regard to the
maintainability of the application for intervention has not
been considered at all by the Court below.
6. Mr. Udgata, learned counsel appearing for the
Opposite Party No.1 (Bank) would submit that
undisputedly, the suit properties being mortgaged to the
Bank for credit availed by defendant Nos.2, 3 and 4 and
they having defaulted in repayment thereof, the Bank took
constructive possession and has also sold the same to
auction purchasers exercising power under the provisions
of Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002. Certain
proceedings challenging the auction sales are pending
before the Debts Recovery Tribunal, Cuttack at the
instance of the loanee- defendants. Under such
circumstances, the plaintiff being the sister of defendant
No.3, has been set-up to file the instant suit for partition
without impleading the Bank or disclosing that the
properties were mortgaged with it. Mr. Udgata further
argues that the suit is a collusive one filed only to restrain
the Bank from proceeding further under the SARFAESI
Act. Since vital interest of the Bank is involved, it is a
necessary party to the suit considering which, the Court
below rightly allowed its application for intervention. Mr.
Udgata further argues that the present petitioners being
defendants cannot be permitted to question the
correctness of the order when the plaintiff, who had
objected to the intervention petition before the Court
below, has deemed it proper not to challenge the order.
7. The first question that falls for consideration is,
whether the co-defendants can challenge the impugned
order in the facts and circumstances of the case,
particularly when the plaintiff, who is supposed to be
aggrieved has not challenged the same. This Court is of
the considered view that in a suit for partition, the strict
segregation of parties as plaintiffs and defendants as is
seen in other adversarial suits, really does not exist. This
is for the reason that the parties to partition suit,
whatever may be their status in the plaint are on the same
footing, usually being co-sharers. In fact, defendant No.3
is the brother of the plaintiff and the properties sought to
be partitioned are claimed to be ancestral properties.
Therefore, even if the plaintiff has not independently
challenged the impugned order there is no reason as to
why another co-sharer, notwithstanding his status as a
co-defendant cannot challenge the same. This Court
therefore, holds that the writ application at the instance of
defendant No.3 is maintainable.
8. Coming to the main ground of challenge to the
impugned order, it has been urged that a suit for partition
is confined to the members of the family over which an
outsider cannot have any say whatsoever. It has also been
urged that impletion of the Opposite Party No.1(Bank)
would amount to enlarging the scope of a simple suit for
partition.
9. From the facts placed before this Court, it is
observed that defendant No.4 is a private limited company
of which defendant No.3 is the Managing Director and
Defendant No.2 is a Director. Defendant No.1 is a
guarantor along with defendant Nos.2 and 3 for the loan
availed. Defendant Nos.1, 2 and 3 offered their personal
guarantee to avail credit facility to the Opposite Party
No.1(Bank) on 05.12.2014, when cash credit facility of
Rs.3,50,00,000/- and term loan of Rs.5,44,00,000/- were
sanctioned. The schedule properties were furnished as
equitable mortgage by depositing the original title deeds.
There has been further enhancement of the term loan as
well as cash credit facilities the details of which are not
necessary to be gone into for the purpose of the present
case. It would suffice to mention that the defendants
having failed to pay the installments despite repeated
requests by the Bank, the loan account became Non-
Performing Asset(NPA) and the loan was recalled. The
outstanding dues stood at Rs.13.48,00,000/-. It further
appears that the Bank initiated action under different
provisions of the SARFAESI Act by taking constructive
possession and ultimately sold some of the schedule
properties in auction sale.
10. According to the Opposite Party No.1, the suit
has been filed only to create legal hurdle in the process of
recovery of the outstanding loan amount for which it is a
necessary party. On the other hand, the plaintiff objected
to the application for intervention in the Court below that
she has every right over the suit land as coparcener and
defendant No.3 has colluded with defendant No.1 and 2 to
deprive her from her legitimate share. Moreover, she being
the dominus litis cannot be compelled to fight against a
person against her interest, moreso when she is not at all
connected with the loan in question. The Bank may
proceed against the defendant No.3 but only after carving
out the share of all co-sharers over the property.
11. It is a well settled legal position that the plaintiff
is the dominus litis in a suit with liberty to choose a person
against whom he wishes to litigate. He cannot be
compelled to implead a person against whom he does not
seek any relief but then it is also well settled that the
doctrine of dominus litis is subject to the discretionary
power of the Court under Order 1 Rule 10 of CPC. In other
words, if the Court feels that impleadment of a person is
necessary for proper adjudication of the dispute, it has
power to do so. It would be apt to refer to the provision
under Order 1 Rule 10 of CPC which is reproduced below:-
"10. Suit in name of wrong plaintiff-(1)Where
a suit has been instituted in the name of the wrong
person as plaintiff or where it is doubtful whether it
has been instituted in the name of the right
plaintiff, the Court may at any stage of the suit, if
satisfied that the suit has been instituted through a
bona fide mistake and that it is necessary for the
determination of the real matter in dispute so to do,
order any other person to be substituted or added
as plaintiff upon such terms as the Court thinks
just.
(2)Court may strike out or add parties- The
Court may at any stage of the proceedings, either
upon or without the application of either party, and
on such terms as may appear to the Court to be
just, order that the name of nay party improperly
joined, whether as plaintiff or defendant, be struck
out and that the name of any person who ought to
have been joined, whether as plaintiff or defendant
or whose presence before the Court may be
necessary in order to enable the Court effectually
and completely to adjudicate upon and settle all
the questions involved in the suit be added.
(3)No person shall be added as a plaintiff suing
without a next friend or as the next friend of a
plaintiff under any disability without his consent.
(4)Where defendant added, plaint to be
amended-Where a defendant is added, the plaint
shall unless the Court otherwise directs, be
amended in such manner as may be necessary,
and amended copies of the summons and of the
plaint shall be served on the new defendant and, if
the Court thinks fit, on the original defendant.
(5)Subject to the provisions of the [Indian
Limitation Act, 1877(15 of 1877), Section 22], the
proceedings as against any person added as
defendant shall be deemed to have begun only on
the service of the summons."
12. Bare reading of the provision makes it clear that
if the impletion is necessary to enable the Court to
effectually and completely adjudicate upon and settle all
questions involved in the suit, the same may be allowed
even suo-motu. From the facts narrated, it is evident that
the suit property, though not partitioned by metes and
bounds was mortgaged to the Opposite Party No.1 (Bank)
for credit facilities. The borrowers having defaulted in
honouring their commitment to repay the loan, the Bank
has taken steps to protect its interest in accordance with
law. In fact, some of the properties have been put to E-
auction. Further, certain proceedings are pending before
the Debts Recovery Tribunal against the auction.
Therefore, the suit for partition involving the very same
properties cannot be viewed in isolation.
13. In other words, it is a case where the Bank must
be held to have a substantial interest in the suit. True,
being a party the result of the suit would be binding on it,
but then having regard to the substantial interest it has
over the properties, its impletion would certainly enable
the Court to decide the suit more effectively. Furthermore,
as contended by the Bank, the possibility of the suit
having been filed by the plaintiff in collusion with the
defendants to frustrate or thwart the actions taken by the
Bank for recovery of its outstanding dues cannot also be
ruled out at least at this stage though the same can only
be determined in trial.
14. Thus, considering all the above aspects, this
Court is of the view that the Bank is at least a proper
party in the suit. Reading of the impugned order reveals
that the Court below has taken note of the facts and the
settled position of law in the proper perspective and in
particular, held that the impletion of the Bank being
directed by the Court, the suit for partition would no way
be affected by any provision of SARFAESI Act. For the
reasons indicated, this Court concurs with the reasoning
of the Court below and therefore, finds no reason to
interfere therewith.
15. For the foregoing reasons therefore, the CMP
being devoid of merit is therefore, dismissed.
...............................
Sashikanta Mishra,
Judge
High Court of Orissa, Cuttack
The 18th of November, 2025/ Puspanjali Ghadai, Jr. Steno
Designation: Junior Stenographer
Location: High Court of Orissa, Cuttack.
Date: 19-Nov-2025 13:02:33
