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2008 DIGILAW 1266 (JHR)

Suresh Kumar Singh v. Shyam Nandan Singh

2008-11-17

R.K.MERATHIA

body2008
Order This civil revision application has been filed against the order dated 15.3.2005 passed in Execution Case No. 4 of 1992 by the learned Sub-Judge-I, Daltonganj rejecting intervener's application" filed by the petitioner on 21/22.6.1992. 2. Mr. Shivnath, learned senior counsel, appearing for the petitioner submitted that petitioners are the sons of second wife of Rajnath Singh who was defendant No. 1 in the Partition Suit No. 22 of 1975 and after his death in 1978 petitioners were not substituted as party and therefore, the petitioners had to file the said petition for intervention for raising their objections and claims in the partition suit. He relied on the judgment of Ashan Devi, reported in 2004(1) JCR 124(SC), and submitted that even a third party could raise objection under Section 47 or under Order 21 Rule 97 to 100 C.P.C., but the learned court below has rejected the application filed by the petitioners, for adding them parties and hearing them, on the ground that they were not the parties in the suit. 3. Mr. Amar Kumar Sinha, appearing for the opposite parties, on the other hand, supported the impugned order and submitted that the decree was passed as far back as on 21.5.1977 and Rajnath Singh died in 1978 but the petition for intervention was filed in 1992. He referred to the petition filed by the petitioners in the court below (Annexure-A) and submitted that no case was made out by the petitioners for Impleading them as parties, and therefore their application made at highly belated stage was rightly rejected. He further submitted that the case of Ashan Devi (supra) is not applicable in this case, as the petitioner's application was not under Section 47 or Order 21 Rule 97 to 101 C.P.C. He further submitted that a deed of gift dated 22.12.1971 (Annexure-C) was executed by which Rajnath Singh gave 2.50 acres of land to the petitioners who were sons of his concubine, and declared that they will not be entitled to any share. He therefore submitted that the executing court has rightly rejected the petition for intervention, filed by the petitioners. 4. In reply Mr. Shivnath submitted that whether in view of the said deed of gift, petitioners will be entitled to any share or not, is required to be decided by the executing court. 5. He therefore submitted that the executing court has rightly rejected the petition for intervention, filed by the petitioners. 4. In reply Mr. Shivnath submitted that whether in view of the said deed of gift, petitioners will be entitled to any share or not, is required to be decided by the executing court. 5. It appears from the order dated 3.9.2003 read with order dated 17.12.2003 passed in C.R. No. 220 of 2003, that the executing court was directed to hear and dispose of the said petition filed by the petitioners in accordance with law and accordingly the parties were heard. There is no dispute with the legal position explained in the case of Ashan Devi (supra) that the executing court should adjudicate the inter se claims of the decree holder and the third parties, in the execution proceedings itself, to avoid multiplicity of proceedings. But in the present case it appears that in the Partition Suit No. 22 of 1977, Rajnath Singh was defendant No.1. After the preliminary decree was drawn on 21.5.1977, Rajnath Singh died in 1978. From the application in question filed by the petitioners, it appears that a vague and general statement was made that they had no knowledge about the case. It is not disclosed when and how they came to know about the partition suit and/or the execution case. Thus the application in question was filed after about 14-15 years from passing of the preliminary decree in the partition suit in the year 1977 and from the date of death of Rajnath Singh in 1978. The petitioners cannot be allowed to be impleaded parties in the execution case, as it is not possible to believe that they did not knew about the decree passed in the year 1977 till 1992 when they filed the present petition for intervention. I find no reason to interfere with the impugned order. Accordingly this civil review application is dismissed. However, no costs.