MOHABBAT SINGH Vs. BASANTI DEVI

JUDGEMENT

(1.) There are bundle of mixed facts, which are involved consideration in the present Writ Petition. The first and foremost consideration which could legally be taken by the Court as against the impugned order is pertaining to its tenability for the reasons that legally as per law as against the rejection of an application under Order 9 Rule 13, the Revision is not maintainable because under the CPC, in accordance with the provision contained under Order 43 Rule 1(d), the only procedure and legal remedy, which is prescribed therein is of preferring of an Appeal against the rejection of Order 9 Rule 13 by invoking Section 104 of CPC. That in itself could be a valid and legal ground to allow the Writ Petition and to set aside the impugned order, by virtue of which, the Revision preferred by the respondents against the rejection of the Misc. Case No. 470 of 1993, Anand Singh Vs. Mohabbat Singh under Order 9 Rule 13 itself would not be maintainable.

(2.) But looking to the age of the litigation, this Court is not deciding the impugned judgment from the said perspective rather is proceeding to decide the impugned order under challenge on merits itself with the permission and the consent extended by the counsel for the parties.

(3.) The precise question, which came up for consideration before the Court below was that there was a Suit filed, being Suit No. 7 of 1979, Mohabbat Singh Vs. Jhandu Singh and others, in which, the relief sought was that of a decree for partition and possession over the property and also for grant of a decree of permanent injunction as against the three defendants, Jhandu Singh, Prathvi Singh and Nakal Singh. The said suit proceeded and by virtue of the judgment and decree dated 8th May, 1989, the Suit was decreed in favour of the plaintiff/petitioner and a preliminary decree was passed in favour of the plaintiff/petitioner. As against the judgment and decree dated 8th May, 1989, consequently, a preliminary decree as framed as a consequence of the judgment dated 8th May, 1989, a final decree was also prepared and a final decree was rendered in Misc. Case No. 85 of 1989, Mohabbat Singh Vs. Jhandu Singh and others, whereby, the preliminary decree was affirmed, consequently, the partition Suit No. 7 of 1979, Mohabbat Singh Vs. Jhandu Singh and others finally stood settled and confirmed in pursuance to the final decree of partition.