DUDHNATH Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) In original suit no. 56 of 1983 instituted by the second respondent for partition, a preliminary decree was passed on 30 July, 1996 declaring his share in the suit property as 1/4. Thereafter, a final decree was prepared on basis thereof on 12 Sept. 2011. During the course of the proceedings for delivery of possession of the kura coming to the share of the plaintiff, an application was filed by the petitioner purportedly under Order 21, Rule 29 C.P.C. for staying the execution proceeding. According to the petitioner, the plaintiff does not have 1/4 share in the suit property and his share is confined only to 1/5. It was contended that the original owner of the property died leaving behind five sons each having share in the suit property. One of his sons Vibhuti died issueless. According to the petitioner, his share had devolved on the petitioner by testamentary succession. The petitioner claims to have made an application for impleadment in the suit but which was dismissed. He later on was impleaded as a party to the suit as legal representative of one of the sons of the original owner. However, the suit, as noted above, was decreed and the plaintiff was held to be owner to the extent of 1/4 share. The preliminary decree was followed by passing of a final decree.

(2.) The petitioner thereafter filed Original Suit no. 13 of 2010 for declaration that the decree passed in the partition suit no. 56 of 1983 is not binding on him and for partition of his share. He also filed an application in the execution proceedings for stay of execution.

(3.) The executing court by impugned order dated 18.12.2012, rejected the application holding that the preliminary decree and the final decree passed in the suit have attained finality and it is not a fit case where the execution proceedings deserves to be stayed. The order has been affirmed with the dismissal of the revision.