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2016 DIGILAW 1395 (ALL)

Bhupendra Kumar Jain v. Chakit Kumar Mishra

2016-04-13

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. – Heard Sri Manish Dev Singh for the petitioner and Sri V.P. Rai for the caveator. 2. This petition has been filed against the order of Additional District Judge dated 2.3.2016 by which Misc. Appeal filed by third person/objector has been allowed and the matter has been remanded to the executing court for deciding the objection under Order 21, Rule 98 and 99 CPC on merit. 3. The argument of the counsel for the petitioner is that third person namely Chakit Kumar Mishra is not a stranger but son of Akhilesh Kumar Mishra who was judgement debtor in the suit and issue relating to title of Akhilesh Kumar Mishra has been raised by Akhilesh Kumar Mishra in the suit itself and it has been finally decided that Akhilesh Kumar Mishra is the owner of the property in dispute and agreement to sell was rightly executed by him, therefore the suit for specific performance of contract has been decreed and appeal filed by Akhilesh Kumar Mishra has been dismissed by the lower appellate court by order dated 18.2.2008. Thereafter no second appeal has been filed. In the absence of decree of the trial court the proceeding relating to execution of decree has been taken by the trial court. Now in the execution proceeding son of Akhilesh Kumar Mishra namely Chakit Kumar Mishra filed an application under Order 22, Rule 98 CPC. Chakit Kumar Mishra being son of Akhilesh Kumar Mishra is bound by decree. He further submits that Chakit Kumar Mishra derived his title on the basis of Will dated 9.2.1995 allegedly executed by Smt. Kesar Devi wife of Nagendra Dutt Sharma, who was maternal grand mother. He submits that Smt. Kesar Devi was surviving up to the year 1997 and suit was filed in the year 1986 but she did not contest the matter during her life time. Now on the basis of Will, Chakit Kumar Mishra cannot be permitted to contest the matter. He further submits that it has been well settled by this Court as well as by the Supreme Court that if the record is complete, the appellate court should decide the appeal on merit instead of remanding the matter and by the impugned order the matter has been remanded as such it is liable to be set aside. 4. He further submits that it has been well settled by this Court as well as by the Supreme Court that if the record is complete, the appellate court should decide the appeal on merit instead of remanding the matter and by the impugned order the matter has been remanded as such it is liable to be set aside. 4. I have considered the arguments of the counsel for the parties and examined the records. 5. A perusal of the objection of Chakit Kumar Mishra shows that he has set up his independent title through the Will executed by Smt. Kesar Devi dated 9.2.1995. The contention that property in dispute belong to Sri Nagendra Dutt Sharma who had adopted Akhilesh Kumar Mishra on 28.6.1974 and the property in dispute was inherited by Akhilesh Kumar Mishra is not liable to be accepted as under Hindu Law, after death of husband son as well as widow both will jointly inherit the property in dispute. Since title dispute, set up by Chakit Kumar Mishra is independent from Akhilesh Kumar Mishra as such finding recorded in the suit as well as in the appeal is not binding upon him. It has been further stated that third person can contest proceeding for delivery of possession after execution of sale deed according to the provision under Order 21, Rule 98 and 99 CPC. 6. So far as remand order is concerned, the Executing Court has rejected the application under Order 21, Rule 98 CPC filed by Chakit Kumar Mishra only on the ground of maintainability and has not conducted any trial therefore the trial is necessary, as title of Chakit Kumar Mishra is based upon Will and he has to examine the oral evidence in order to prove his Will according to the provisions of Section 68 of Evidence Act, 1872. In such circumstances, the impugned order does not suffer from any illegality and no interference is required by this Court. 7. However, as the matter is lingering since 1986, it is appropriate that Executing Court should expedite the trial and try to conclude it within a period of six month, without granting any unnecessary adjournment to either of the parties. 8. The parties are appearing before this Court, they undertake that they shall not take any unnecessary adjournment before the court below. 9. With the aforesaid observation, petition is disposed of. Petition disposed of.