BABUSAHEB SINGH Vs. PARSID NARAIN SINGH

JUDGEMENT

(1.) Special leave granted.

(2.) In a suit for partition a preliminary decree was passed in which the properties standing in the name of original Defendant No. 30 Nathu Singh and those standing in the names of the wives of defendants Nos. 2 and 5 were excluded from partition as the. same exclusively belonged to those persons. The preliminary decree was framed in accordance with the directions given in the judgment. In an appeal from the preliminary decree, an argument was raised before the High Court that the preliminary decree was not drawn up in consonance with the judgment. The High Court in its order dated 27th June, 1978 observed in Para 4 that there was no inconsistency between any portion of the judgment and preliminary decree in respect of such properties. The Court thus observed that the counsel for the appellants gave up this point. During the proceedings for final decree, a petition was filed on behalf of defendants Nos. 1-11 stating that the Advocate Commissioner be directed to exclude lands standing in the names of Nathu Singh and the wives of defendants Nos. 2and 5. The Court passed an order 17-12-87 excluding the above lands and properties from partition.

(3.) Aggrieved against the aforesaid order,. a revision was filed in the High Court. The High Court by its order dated 22-7-88 held that it appears that the High Court in its previous order had given a direction that the matter relating to the inconsistency in the judgment, vis-a-vis the preliminary decree prepared on the basis thereof, had been given up before the High Court. It was thus observed that the respondents could not reagitate the said question again before the executing Court at a later stage. Aggrieved against the aforesaid order, the present appeal has been filed.