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2013 DIGILAW 453 (JHR)

Golak Bihari Mandal v. Kamla Devi

2013-04-05

P.P.BHATT

body2013
ORDER The petitioners, by way of filing the present writ petition under Article 227 of the Constitution of India, have prayed for quashing and setting aside order dated 20.8.2010(Annexure-2) passed by the District Judge, Deoghar in Misc. Appeal No. 5/2006 and order dated 10.7.2006 (Annexure-1) passed by Sub-Ordinate Judge-II in Misc. Case No. 3/2006, whereby, the learned Sub-Ordinate Judge has dismissed the petition filed under Order XXI, Rules 97 and 99 read with Section 151 of the Code of Civil Procedure. 2. Heard the learned counsel for the parties and perused the impugned orders as well as other materials placed on record. 3. Learned senior counsel appearing for the petitioners submitted that one Title Suit bearing No. 49/97 was filed by the respondents before the Court below and the said suit was disposed of in view of the settlement/compromise arrived at amongst the parties. It is also submitted that one Misc. Case No. 01/2004 was filed by some of the original defendants under Order IX Rule 13 of the CPC with a prayer to set aside the compromise decree and in the said case the petitioners moved an application for impleadment as parties under Order I, Rule 10 of CPC but the said application was dismissed as not pressed. According to the learned counsel for the petitioners, the petitioners were never given opportunity to put forward their cases against the fraudulent compromise decree obtained in Title Suit No. 49/97 though they were legally entitled to raise objection and ventilate their grievance against the fraudulent compromise decree obtained in Title Suit No. 49/1997. It is further submitted that being aggrieved by and dissatisfied with the said order, the petitioners preferred First Appeal No. 10/05 challenging the final decree and the said first appeal was ordered to be dismissed on technical ground. The learned senior counsel for the petitioners further submitted that thereafter, a Second Appeal was preferred by the present petitioners but the same was withdrawn as not pressed as the petitioners wanted to avail the alternative remedies under Order XXI Rules 97 and 99 r/w Rule 100 of CPC. The learned senior counsel for the petitioners further submitted that thereafter, a Second Appeal was preferred by the present petitioners but the same was withdrawn as not pressed as the petitioners wanted to avail the alternative remedies under Order XXI Rules 97 and 99 r/w Rule 100 of CPC. Learned senior counsel by referring the provision as contained in Order XXI Rule 97 and 99 r/w Rule 101 of CPC submitted that execution can be obstructed by any person by submitting an application under the above position and the said application is required to be dealt with and decided by the executing court as per provision contained in Order XXI Rule 101. It is submitted that in view of the facts and circumstances of the case, the petitioners filed an application under Order XXI Rule 97 of the Code of Civil Procedure, which is legally maintainable. However, the court below in execution proceeding, rejected the said application without proper appreciation and consideration of the relevant facts and materials placed on record. The learned senior counsel for the petitioners by referring the various provision relating to an appeal under Order XLIII (1A) of the Code of the Civil Procedure as also the provision as contained in Section 96(3) of the Code of Civil Procedure submitted that no appeal shall lie from a decree passed by the court with consent of parties. The learned senior counsel for the petitioners in support of his contention has referred to and relied upon the following judgments;- 1. AIR 1996(SC) page 2367, 2. AIR 1991(SC) page 264, 3. AIR 1993 Delhi 187 and 4. AIR 1970 (Andhra Pradesh) page 375. 4. As against this, the learned counsel for the respondents by referring counter affidavit submitted that the petitioners have suppressed the material facts by not mentioning the Title Suit 81/2004 filed by the petitioners as also about the Title Partition Suit No. 138 of 2010. Learned counsel for the respondents by referring the impugned order passed by the court below pointed out that the court below has discussed in detail about the various proceedings filed by the present petitioners including the fact about filing of second appeal, which was dismissed as withdrawn. Learned counsel for the respondents by referring the impugned order passed by the court below pointed out that the court below has discussed in detail about the various proceedings filed by the present petitioners including the fact about filing of second appeal, which was dismissed as withdrawn. It is also pointed out that the appellate court has also discussed in paragraph 19 of its order about the various proceedings initiated by the present petitioners and the outcome of the said proceedings and thereafter, rejected the said appeal. It is further submitted that since the petitioners have suppressed the material facts before this Court, the petitioners are not entitled to get any relief(s) as prayed for as the petitioners have not approached this Court with clean hand. Learned counsel for the respondents in support of his contention has referred to and relied upon the judgment reported in 2013(1) JBCJ 314 and submitted that the title suit filed by the present petitioners is still pending before the competent court and this fact is not pointed out before this Court and the ratio laid down in the said judgment provides that two parallel proceedings for same cause are not permissible and is against the public policy and this judgment is relevant for the purpose of present case. 5. In response to the submission made by the learned counsel for the respondents, the learned senior counsel for the petitioners submitted that his clients have not suppressed any facts. It is submitted that by filing a supplementary affidavit, this fact has been mentioned. It is also submitted that the fact, which has not been stated in the petition is merely on omission and that omission shall not come in way or shall not disentitle the petitioner to get any relief(s), as prayed for by the petitioners under Order XXI Rules 97 and 99 read with Rule 101 of the Code of Civil Procedure as it clearly provides that a separate suit is not maintainable. 6. 6. Considering the aforesaid rival submissions of the parties and from perusal of impugned orders as well as other materials placed on record, it appears that the petitioners have filed the present writ petition being aggrieved and dissatisfied by the findings recorded by the court below in an application filed under Order XXI Rule 97 of the Code of Civil Procedure and from perusal of the impugned orders, it appears that the court below after careful consideration and submissions made by the learned counsel for the parties and after taking into consideration the various proceedings and its outcome, has reached the conclusion that the application filed under Order XXI Rules 97 and 99 r/w Rule 101 of the Code of Civil Procedure is not maintainable. It also appears that the present petitioners have not mentioned about the filing of Title Suit No. 81/2004, which was subsequently converted into Title Partition Suit No. 138/2010 in this petition. However, learned counsel for the petitioners tried to justify the same and submitted that the said suppression shall not come in way or shall not disentitle the petitioners to get the relief(s), as prayed for in this writ petition in view of provision as contained in Order XXI Rules 97 and 99, r/w Rule 101 of the Code of Civil Procedure. The said argument of the petitioners can not be accepted as this fact was relevant and required to be narrated at the time of filing of the petition. This Court is of the view that on the ground of suppression of material fact the petitioners are not entitled to get any relief(s), as prayed in this petition. Moreover, para 19 of the impugned order dated 20.8.10 passed by the learned District Judge, Deoghar, clearly indicates that Title Appeal No. 10/2005 was not dismissed merely on technical ground but, it was dismissed on merit also. It appears that the petitioners have filed substantive suit claiming their right, title and interest in the property as also for declaration that the decree passed in T.S. No. 49/1997 is illegal, void and non-operative under law. The petitioner can not be allowed to re-agitate the issue which have been raised in a substantive suit filed by him that to by suppressing material fact involved in the case. The petitioner can not be allowed to re-agitate the issue which have been raised in a substantive suit filed by him that to by suppressing material fact involved in the case. The Order XXI Rule 97 R/w 99 & 101 provides that the issue raised therein can not be decided by a separate suit. But in the instant case as it reveals from para 9 of the courter affidavit prior to filing of such application the petitioner has already filed a separate suit bearing Title Suit No. 81/2004 against the respondent and others before the learned Settlement Officer, Dumka and the same was transferred in view of Section 5(A) of the Santhal Pargana Tenancy (Regulation) Act, 1872 and now the same is pending for adjudication before the learned Sub-Judge-I, Deoghar vide Title (P) Suit No. 138 of 2010. Therefore, if the petitioner-plaintiff in the said suit succeed in establishing his title and declaration as sought for, then the consequence will follow. The learned senior counsel for the petitioners in support of his contention has referred to and relied upon the various judgments reported in AIR 1996(SC) page 2367, AIR 1991(SC) page 264, AIR 1993 Delhi 187 and AIR 1970 (Andhra Pradesh) page 375, but the ratio laid down in the above judgments does not help the petitioners in view of the above stated facts and circumstances of the present case. 7. In view of the above discussion, the present writ petition deserves to be dismissed. Accordingly, this writ petition stands dismissed. Consequently, ad interim order dated 19.1.2012 is ordered to be vacated.