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2013 DIGILAW 557 (PAT)

Arbind Kumar Singh v. Lalita Devi

2013-04-26

JYOTI SARAN

body2013
ORDER Heard Mr. Ram Chandra Singh, learned counsel appearing for the petitioner and Mr. Awadhesh Kumar Mishra, learned counsel appearing for the opposite parties. 2. This Civil Revision application is directed against the order dated 09.04.2010 passed by learned Sub-Judge-6th, Rohtas at Sasaram in Miscellaneous Case No. 1 of 2004 filed for restoration of Execution Case No. 8 of 1980, whereby the learned court below has been pleased to allow the Miscellaneous Case thus restoring the Execution Case to its original position subject to payment of cost of Rs. 500/-. 3. The facts of the case in brief is that a Partition Suit was filed by one Shankar Ahir as against the ancestors of the present petitioners giving rise to Partition Suit No. 18 of 1965 / 130 of 1971. The Partition Suit was decreed in favour of the plaintiff Shankar Ahir under the judgment and preliminary decree dated 18.09.1971 / 04.11.1971 and following which a final decree was prepared on 27.11.1975. An Execution Case followed the final decree giving rise to Execution Case No. 8 of 1980 at the instance of plaintiff Shankar Ahir. In terms of the decree the plaintiff was found entitled to partition of the suit property by half and half. While the Execution Case was pending, it is stated that a compromise was filed on 24.11.1982 whereunder the decree was sought to be modified upon division of the suit property amongst the parties by 1/3 share to each. Before the compromise could be acted upon, the Execution Case was dismissed for default on 08.02.1984. The decree holder Shankar Ahir also died in 1986. Following some disputes in relation to the suit property, a Section 144 Cr.P.C. proceeding is stated to have been initiated by the son-in-law of late Shankar Ahir in the year 2000 and which was followed by a fresh Partition Suit at the instance of the widow of Shankar Ahir and his daughters giving rise to Title Suit No. 120 of 2001 which however was dismissed for default on 23.02.2007. In between the restoration case in question case was filed on 16.04.2004 by invoking the inherent powers of the Court under Section 151 of the Code of Civil Procedure after a lapse of 20 years of the dismissal of the Execution Case giving rise to Miscellaneous Case No. 1 of 2012. In between the restoration case in question case was filed on 16.04.2004 by invoking the inherent powers of the Court under Section 151 of the Code of Civil Procedure after a lapse of 20 years of the dismissal of the Execution Case giving rise to Miscellaneous Case No. 1 of 2012. Six years thereafter the order impugned was passed on 09.04.2010 restoring the Execution Case to its original position. Pending final adjudication of the restoration matter the widow of Shankar Ahir also deceased. 4. I have heard Mr. Ram Chandra Singh, learned counsel appearing on behalf of the judgment debtors and Mr. Awadhesh Kumar Mishra, learned counsel representing the legal heirs of decree holder. The only issue raised by Mr. Singh appearing for the judgment debtor is that the period of lapse being huge and a compromise having been filed at the instance of the parties, the order of restoration is not in tune with the settled principles of law. It is the case of the judgment debtors who are the petitioners before this Court that the parties had in fact acting on the compromise taken possession over 1/3 of the property and thus any interference at this stage would be adversarial to their interest. He further submits that the Title Suit filed by the legal heirs of the decree holder Shankar Ahir having been dismissed for default, there was no occasion for restoration of the Execution Case. He, thus, in the circumstances submits that the learned trial court ought not to have exercised its inherent powers to restore the Execution Case after 26 years of its dismissal. 5. Mr. Mishra has appeared for the legal heirs of the decree holder and while not contesting the factual aspect of the matter, submits that since the legal heirs of the decree holder were not aware of the Execution Case and the decree passed in the suit, hence they had filed a Title Suit. It is stated that after gathering knowledge about the decree passed in their favour in P.S. No. 18 of 1965/130 of 1971, that they chose to file the restoration application. 6. I have heard learned counsel for the parties and have perused the materials on record. It is stated that after gathering knowledge about the decree passed in their favour in P.S. No. 18 of 1965/130 of 1971, that they chose to file the restoration application. 6. I have heard learned counsel for the parties and have perused the materials on record. No doubt, there is a gross delay of 20 years in filing of the restoration application which was filed on behalf of the widow of the decree holder as well as the daughters. The restoration application is placed at Annexure-2 of the present proceedings and in which it has been stated by the parties that they had no knowledge about the decree and the Execution Case and which has resulted in the delay. 7. Be that as it may, the fact remains that there is a decree in favour of the opposite parties who are legal heirs of the decree holder and which decree has not yet been superseded by a competent court of superior jurisdiction. It is also not the case of the petitioners that they have questioned the decree by filing any appeal rather the decree has attained finality and an Execution Case was also filed for execution thereof by the decree holder. As ill fate would happen, the decree holder deceased and after a few years his only son also deceased and were survived by the widow and the daughters. There is a probability of correctness in the submissions of the legal heirs of the decree holder about absence of knowledge of the decree or the execution case inasmuch as, initially they chose to file an independent suit for the purpose. It is only subsequently upon gathering information about the decree in their favour that the restoration application was filed. The fact remains that the decree is intact. This Court thus, not venturing to the technicalities of delay and taking note of the fact that under the order impugned, the judgment debtors have been compensated by cost, feels no necessity to interfere with the same and this application is accordingly disposed of.