KRISHNABAI Vs. KRISHNARAO JANANTRAO DESAI

JUDGEMENT

(1.) This revision petition is directed against the order dated 23-10-1990 passed by the Principal Munsiff, Gadag on I.A. No. I in F.D.P. 23/89. By the said order the Principal Munsiff, Gadag allowed I.A.I. filed by the instant petitioner by directing to call back the records sent to the Deputy Commissioner on 2-1-1990 for effecting partition.

(2.) The facts relevant for the disposal of this revision petition, briefly stated, are as under: Plaintiff - Krishnabai (present revision petitioner) filed O. S. No. 63/84 against four defendants (present respondents-1 to 4) praying for a decree for partition and separate possession of her share in the suit properties. The suit was initially contested by defendants 1 and 2. However, later the same was compromised. A compromise decree in terms of the compromise was passed on 8-1-1986. The terms of the decree, relevant for consideration are as under : (Vernacular Matter Omitted - Ed.) According to the decree-holder, defendants-1 and 2 failed to pay the amount within the stipulated time or for that matter at any time later. She therefore filed FDP. No. 23/ 1989 on the file of the Civil Judge at Gadag praying for transmitting the papers to the Deputy Commissioner, Dharwar to effect partition under Section 54, C.P.C. It appears that in the meanwhile defendants-1 and 2 had sold the properties to defendants-5 and 6. They were therefore added as party defendants to FDP No. 23/ 89. The Court of Munsiff by its order dated 2-1-1990 directed that the papers be sent to the Deputy Commissioner, Dharwar presumably to effect partition under Section 54, C.P.C.

(3.) When this was so, the instant respondents-5 and 6 who were added as party defendants-5 and 6 to FDP. No. 23/1989 filed an application before the Munsiff, Gadag at I.A. No. I under Order 13, Rule 10 R/ W Section 151, C.P.C. praying for recalling the papers sent to the Deputy Commissioner. Among other things, they alleged that defendant-1 had executed a registered sale deed in favour of defendants-5 and 6 for Rs. 29,000/- on 25-4-1986 and handed over the possession of the suit land to them and they have become the owners in respect of the said land. It was also alleged by them that plaintiff had filed Execution Petition No. 140/1986 in the Civil Judge's Court at Gadag demanding Rs. 15,000/- from defendants-1 and 2 and that the said execution case came to be dismissed. They have also made reference to G and W No. 1 / 86 in para-5 of the affidavit accompanying the application. They asserted that plaintiff had no right to get the partition effected as prayed for by her. On these grounds in substance, they prayed for recalling the papers sent to the Deputy Commissioner under Section 54, C.P.C.