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2008 DIGILAW 106 (PAT)

Ashraf Hussain v. Bibi Nayeema Khatoon

2008-01-18

S.N.HUSSAIN

body2008
Judgment 1. Heard learned counsel for the petitioner. No one appears for the opposite parties although several notices were sent to the opposite parties and had been validly served. 2. This Civil Revision has been filed by defendant no. 5-opposite party-petitioner against order dated 21.8.2004 passed in Misc. Case No. 1 of 2001, by which the learned Subordinate Judge-Ill, Aurangabad, rejected the application of the petitioner to dismiss the aforesaid miscellaneous case filed by opposite party first set as not maintainable. 3. This matter arises out of Partition Suit No. 99 of 1984, which has filed by the opposite party first set for partition of their 1/3rd share. The petitioner was defendant in the said suit, which was decreed on 10.12.1986 by the learned Subordinate Judge-III, Aurangabad, and a preliminary decree was prepared, whereafter a final decree was also prepared on 19.4.1987 as per the aforesaid preliminary decree of the trial court. For execution of the aforesaid decree, Execution Case No. 5 of 1987 was filed by the plaintiffs, whereafter a compromise petition was filed on 1.12.1989 and in view of the said compromise petition, the execution proceeding was dropped on 1.12.1989. 4. The aforesaid judgment and preliminary decree of the learned court below was challenged by defendant no. 5-petitioner in Title Appeal No. 6 of 1987 (57 of 1991) and in the said title appeal a compromise petition was filed on behalf of the parties on 17.11.1992 and the suit was decreed in terms of the compromise by order dated 21.11.1992 and a final decree in terms of the said compromise petition was prepared, signed and sealed on 12.4.1993. The said decree of the lower appellate court has not been challenged by anyone. 5. Learned counsel for the defendant-petitioner submits that the compromise petition filed in the executing court was not legal and did not contain the signature of all the parties to the suit and hence it was non est due to which there was necessity of filing a compromise petition in the title appeal. He further submits that the decree of the title suit merged into the decree of the appellate court and hence no execution could be made of the decree of trial court. 6. It is also clear from the facts and circumstances of the case that after the preliminary decree and final decree of the appellate court, the plaintiffs had filed Misc. 6. It is also clear from the facts and circumstances of the case that after the preliminary decree and final decree of the appellate court, the plaintiffs had filed Misc. Case No. 1 of 2001 before the learned Subordinate Judge-Ill, Aurangabad, before whom earlier Execution Case No. 5 of 1987 was pending, for holding that earlier compromise petition filed in the executing court was fraudulent and after enquiry and hearing of the parties to set aside the aforesaid order of the executing court on the fraudulent compromise petition and decide Execution Case No. 5 of 1987 on merits. The petitioner, who was defendant no. 5 in the trial court, filed a petition on 16.5.2002 for dismissing the said miscellaneous case as not maintainable. 7. Considering the facts and circumstances of the case and the materials on record, including the impugned order, it is quite apparent that the plaintiff-opposite parties first set themselves claimed that the compromise petition dated 1.12.1989 filed in Execution Case No. 5 of 1987 was a fraudulent one and order dated 1.12.1989 was not valid in the eye of law. This fact is also admitted by the defendant-petitioner, who also submits that the said compromise petition and the order passed in Execution Case No. 5 of 1987 were not legal and proper, due to which all the parties subsequently filed a joint compromise petition in the lower appellate court on 17.11.1992, which was allowed by the learned 3rd Additional District Judge, Aurangabad, and Title Appeal No. 6 of 1987 was decreed on the basis of the said compromise petition and subsequently a final decree was also prepared and signed in accordance thereof on 12.4.1993. In the said circumstances, when the preliminary decree and the final decree have already been prepared by the lower appellate court, the preliminary decree and final decree of the trial court merged in the decree of the lower appellate court and if any execution case had to be instituted and considered, it had to be done in accordance with the decree of the appellate court and not of the trial court. 8. 8. In the said circumstances, the miscellaneous case filed by the plaintiff-opposite parties was not at all maintainable as the compromise petition filed in Execution Case No. 5 of 1987 and the order passed in the said execution case dated 1.12.1989 were itself non est in the eye of law and hence the said Execution Case No. 5 of 1987 cannot be revived and decided on merits. 9. In view of the aforesaid facts and circumstances, this Civil Revision is allowed and the impugned order dated 21.1.2004 of the learned court below is set aside and Misc. Case No. 1 of 2001 pending before the learned Subordinate Judge-III, Aurangabad, is held to be not maintainable.