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2015 DIGILAW 2967 (ALL)

Dudhnath v. Additional District Judge

2015-09-17

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta, J. In original suit no. 56 of 1983 instituted by the second respondent for partition, a preliminary decree was passed on 30 July, 1996 declaring his share in the suit property as 1/4. Thereafter, a final decree was prepared on basis thereof on 12 Sept. 2011. During the course of the proceedings for delivery of possession of the kura coming to the share of the plaintiff, an application was filed by the petitioner purportedly under Order 21, rule 29 CPC for staying the execution proceeding. According to the petitioner, the plaintiff does not have 1/4 share in the suit property and his share is confined only to 1/5. It was contended that the original owner of the property died leaving behind five sons each having 1/5 share in the suit property. One of his sons Vibhuti died issueless. According to the petitioner, his 1/5 share had devolved on the petitioner by testamentary succession. The petitioner claims to have made an application for impleadment in the suit but which was dismissed. He later on was impleaded as a party to the suit as legal representative of one of the sons of the original owner. However, the suit, as noted above, was decreed and the plaintiff was held to be owner to the extent of 1/4 share. The preliminary decree was followed by passing of a final decree. 2. The petitioner thereafter filed Original Suit no. 13 of 2010 for declaration that the decree passed in the partition suit no. 56 of 1983 is not binding on him and for partition of his 1/5th share. He also filed an application in the execution proceedings for stay of execution. 3. The executing court by impugned order dated 18.12.2012, rejected the application holding that the preliminary decree and the final decree passed in the suit have attained finality and it is not a fit case where the execution proceedings deserves to be stayed. The order has been affirmed with the dismissal of the revision. 4. Learned counsel for the petitioner, placing reliance on the provision of Order 21, rule 29 as well as section 10 CPC submitted that it was a fit case where the execution proceedings should have been stayed. 5. Concededly, the petitioner was aware of the institution of the suit for partition. He even applied for impleadment in the suit but the impleadment application was rejected. 5. Concededly, the petitioner was aware of the institution of the suit for partition. He even applied for impleadment in the suit but the impleadment application was rejected. Nonetheless, in case he was aggrieved by the decree passed in the suit, he had the remedy of challenging the same by filing an appeal with the leave of the court. However, such course was not adopted by the petitioner. The petitioner later became a party to the suit, though as legal representative of one of the deceased son of the original owner. The decree passed in the suit was not subjected to challenge. The suit instituted by the petitioner on the basis of the alleged Will is at the very initial stage and the Will on the basis of which, petitioner claims title to the suit property is still to be proved. 6. The revisional court, in view of the aforesaid facts and circumstances, rightly held that the executing court had lawfully exercised its discretion in not staying the execution proceedings, which relates to a decree passed in a suit of the year 1983. 7. This Court does not find any illegality in the view taken by the courts below, which may warrant interference in exercise of power under Article 227 of the Constitution. 8. The petition lacks merit and is dismissed.