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1985 DIGILAW 673 (ALL)

Budhia v. Chhedi Ram

1985-07-18

A.P.MISRA

body1985
JUDGMENT A.P. Misra, J. - Heard learned counsel for the appellant. The foundation of the present suit was a decree for maintenance in a proceeding under Section 488 (old) corresponding to Section 125 (new) Cr. P.C. The present suit is for cancellation of sale deed dated 5th June, 1970 as void. It is alleged that this was done to defeat the decree for maintenance granted by the criminal court under Section 488 (old). It was denied that compromise was entered into between the appellant and the respondent no. 3. It is not in dispute that a compromise was filed in proceeding under Section 488, Cr. P.C. and the criminal court recorded a finding accepting the said compromise holding that the decree which was passed earlier has become null and void. It was contended by the learned counsel for the appellant in the present proceedings that finding has been recorded that the compromise is against public policy and that finding was confirmed by this Court. However, this Court kept this matter open by the observation that the point can be urged before court that the basis for cancellation of the sale-deed had ceased to exist. It is on that basis that the court below recorded a finding that in view of final orders being passed in proceedings under Section 488, Cr. P.C. and the compromise having become final the suit is liable to be dismissed. 2. Learned counsel for the appellant strenuously urged that the finding which recorded in the present proceedings stood confirmed by this Court earlier, but in view of the observation made by this Court in its judgment the matter was kept open. 3. In fact, the very foundation of the present suit is based on a decree being passed in proceeding under Section 488, Cr. P.C. for maintenance. It is on that account it was urged that the transfer of the property was not bona fide and it was for the purpose of defeating the decree for maintenance itself. When there is no decree in existence for maintenance and that decree itself has been finally set aside by the criminal court. Against it neither any appeal or revision was preferred. In view of this fact that finding having become final there is no cause of action subsisting for which any decree could be passed for cancellation of the sale deed. Against it neither any appeal or revision was preferred. In view of this fact that finding having become final there is no cause of action subsisting for which any decree could be passed for cancellation of the sale deed. The findings recorded by the lower appellate court are findings of fact and need no interference by this Court. This appeal is concluded by findings of fact and is accordingly dismissed under Order 41, rule 11, C.P.C. 4. A copy of this order be given to the learned counsel on payment of usual charges within three days.