NARINDER NATH SHARMA Vs. SHANIT DEVI

JUDGEMENT

(1.) The defendant No.3 has moved the present applications on 18th September, 2002 for setting aside the final decree passed in suit for partition dated 27th January, 1998 and for condonation of delay in filing the above application. The case of defendant No.3 put forward by learned counsel, Mr.Alakh Kumar is that he came to know of the passing of the final decree only on receiving the notice in execution application in March, 2002. This led the defendant to move the present application. Mr.Alakh Kumar submits that the plaintiff happens to be eldest brother in the family of Brahmins where there is a lot of respect shown to the elder brother.

(2.) Learned counsel submits that defendant No.3 was led through the garden path by the plaintiff by assuring that they would amicably resolve and settle the disputes. It is averred in the application that the plaintiff even promised to withdraw the suit and state that they would enter into a memorandum of settlement. It is stated that there were discussion with the plaintiff who had agreed for withdrawal of the suit and enter into a memorandum of settlement. Reference is made to the statement made by the defendants before the Court on 12th May, 1997 and earlier with regard to the proposed compromise. The defendant No.3 could not appear on 24th September, 1997 and since there was no move to disturb the status of the defendant, he took the matter as settled. It is stated that the plaintiff informed that the suit had been withdrawn and the defendant No.3 believed the said words of the plaintiff, who happened to be the eldest brother. It is stated that defendant was shocked on receiving the notices in the execution application. There are certain other objections raised by the defendant which pertains to the execution of the decree.

(3.) I have perused the order sheet, as also the contents of the application. The plaintiff refutes the suggestion that plaintiff ever held out that he would withdraw the suit. Counsel for plaintiff submits that the question of the same does not arise as they were not even on talking terms. Whatever deliberations that had taken place were during the period, the local commissioner was conducting the enquiry, to make recommendations. A perusal of the order sheet and the events which have taken place rather belie the plea sought to be raised by defendant No.3 as incredible. Firstly, the defendant could not be served and refusal summons as recorded on 14th December, 1991. The defendants were proceeded ex-parte on 29th July, 1992. No attempt was made to have the order set aside. However, the defendants No.3 and 4 participated in the proceedings thereafter. The defendants also participated in the proceedings before the local commissioner. Mr.Alakh Kumar states that even objections were filed. The Court had deferred orders on 24th September, 1997 in the absence of his counsel. However, on 27th January, 1998 a final decree was passed in terms of paragraphs 7,8 and 9 of the report of the local commissioner. Even if the defendant's own version is to be accepted that he was told that the plaintiff would be withdrawing the suit and memorandum of settlement would be signed the defendant did not take any steps or make an enquiry, from 1997-2002 with no memorandum being signed. It is not understandable, how the defendant could remain in the illusion that the suit had been withdrawn without there being any settlement or memorandum of settlement. The defendant No.3 is silent on it. Moreover, on 1st March, when the defendant himself admits of having received a notice, the present applications have been filed belatedly only on 18th September, 2002. There is not even an iota of explanation for this delay.