RAM BALI SINGH Vs. KAULESHWAR SINGH

JUDGEMENT

(1.) Present Second Appeal has been filed against the judgment and decree dated 25.11.2005 passed by Additional District Judge, Court No. 8, Deoria in Appeal No. 75 of 1991, arising out of judgment and decree passed in Original Suit No. 63 of 1993 Kauleshwar Singh v. Ram Bali Singh.

(2.) Brief background of the case is that the plaintiff instituted suit with the allegation that on 23.07.1976, defendant borrowed Rs. 19,200/- in cash from the plaintiff and executed pronote and receipt along with interest at the rate of Rs. 1.50% per month. The defendant did not pay even a single shell despite repeated demand, hence the suit. The defendant contested the suit with the allegations that he did not borrow any amount from the plaintiff, the pronote in the suit was without consideration. On the pleadings set out, in all seven issues were framed. The trial court, on the basis of evidence adduced, decreed the suit on 30.11.1974. Aggrieved against the said judgment and decree first appeal was preferred before this Court, and this Court on admission stage of the appeal accorded interim order. Said interim order was subsequently modified on 03.07.1975 by directing that subject to satisfaction of security, the sale in question shall not be confirmed. Subsequently, the matter was sent back to the District Judge as by that time pecuniary jurisdiction to decide the appeal had gone material change. In the said appeal, Kauleshwar Singh died on 12.06.1979. An application was moved on 26.10.1979 under Order 22 Rule 9 (2) C.P.C. along with Section 5 application in First Appeal No. 88 of 1975. Said application was supported by affidavit of Rajendra Kumar Singh. Said application after consideration was rejected on 28.03.1998 and for further action and for disposal of 10-ga and 30-ka-2, date was fixed. Thereafter, an application was moved for recall of order dated 28.03.1998, on 27.08.2003, which application was rejected on 22.09.2005. Thereafter, on 25.11.2005 order was passed mentioning therein that the appeal had already abated by virtue of order dated 28.03.1998 and no adjournment can be granted, as nothing further was required to done and record was directed to be consigned. At this juncture present second appeal has been filed.

(3.) During the pendency of second appeal in question, as auction proceedings in question had already been held, liberty had been given to the plaintiff to deposit the entire decretal amount, and till date on account of interim order sale has not been confirmed.