FAKIRAPPA Vs. BASAVANNEPPA

JUDGEMENT

(1.) O.S. No. 44 of 1995 filed by the petitioner, in the Court of Civil Judge (Senior Division), Gadag, to pass a decree of declaration, partition and separate possession of 1/7th share was allowed and a preliminary decree was passed on 16-4-1998. In pursuance thereof, FDP No. 9 of 1998 was filed. On 31-3-1999, a compromise petition under Order 23, Rule 3 of Civil Procedure Code, 1908 having been filed, a final decree was passed on 11-10-2001. O.S. No. 7 of 2002 was filed by the plaintiff, on 2-1-2002, to grant the following reliefs:

(2.) The petitioner who was defendant 3 in O.S. No. 7 of 2002 filed written statement on 24-6-2003. On 5-4-2008, he filed I.A. No. III under Order 7, Rule 11 read with Section 151 of CPC to reject the plaint. Statement of objections was filed to I.A. No. III on 18-6-2004. Learned Trial Judge, by an Order dated 29-1-2007, rejected I.A. No. III. Issues were raised on 11-6-2006. Amongst others, issues raised are the following:

(3.) Rule 11 of Order 7 of CPC provides for rejection of plaint. Clause (e) thereunder, makes it clear that, if, from the averments made in the plaint, the suit appears to be barred by law, the plaint shall be rejected. There is no dispute that O.S. No. 44 of 1995 was allowed and preliminary decree was passed on 16-4-1998 and thereafter FDP No. 9 of 1998 was filed and in the said case a compromise petition was filed and the final decree was passed on 11-10-2001. In O.S. No. 7 of 2002, it has been averred as follows: