DEVKABAI Vs. MANOHAR PRADHAN MARIYALI

JUDGEMENT

(1.) This application has got to be allowed on the simple ground that the order passed by the learned Judge dismissing the Darkhast cannot just be sustained having regard to the provisions and principles of our procedural law.

(2.) Just a few facts are enough for the purpose of formulating the question involved. The suit property belonged jointly to one Pradhan Mariyali and his son Ramchandra Mariyali. Pradhan Mariyali admittedly had two wives. One, the mother of Ramchandra and the other, one Malkavva, the step mother of Ramchandra. It is alleged that Pradhan had a third wife by name Parubai; but that is not an admitted fact. The present petitioners are the heirs, that is to say, wife, son and daughter of Ramchandra. Ramchandra died on 26-5-1967. The present petitioners filed Civil Suit No. 91/1981 for partition and possession of the joint family property. Pradhan Malkappa Mariyali was the defendant in that suit. Pradhan died pending the suit and the petitioners brought on record Malkavva as the heir and legal representative of Pradhan in the suit. The present respondents Nos. 1 to 3 claim themselves to be the sons of Parubai. But the very fact that Paurbai was the wife of Pradhan is not an admitted fact and whether the present respondents 1 to 3 are the children of Parubai, is neither an admitted nor an established. However, as will be presently pointed out, these questions are not quite relevant in these proceedings.

(3.) After Smt. Malkavva was brought on record in the suit of the petitioners as the heir and legal representative of Pradhan, the suit proceeded and a compromise decree was passed in favour of the parties to the suit. Darkhast No. 13 of 1982 was filed by the petitioners for execution of the said partition decree. In the said Darkhast an order was passed by the petitioners for execution of the said partition decree. In the said Darkhast an order was passed by the Court on 10-2-1982 appointing a Commissioner for the purpose of taking certain steps for the purpose of partition of the suit property. But while this Darkhast was proceeding Malkavva also died. Information about Malkavvas death was given by the petitioners to the Court. In the meantime the Commissioner has made his report as regards the manner in which the partition should be affected and the petitioners move the Court for the purpose of execution of the decree. Their contention was that they themselves were the heirs of deceased Malkavval and they were advised to contend that even without bringing the other heirs on record the Darkhast could proceed. When the execution was likely to proceed the present respondents Nos. 1,2, and 3 made applications as obstructionists. Hence an application was made by the petitioners to the Court for removal of their obstructions and that is how respondents Nos. 1 to 3 came to be impleaded in the Darkhast proceedings as the obstructionists. The contention of the obstructionists was that in addition to Malkavva they themselves were also heirs of deceased Pradhan, they being the sons of Parubai, who was his third wife. Their further contention was that since they were the heirs of deceased Pradhan the suit could not have been proceeded with the compromise decree cold not have been passed by the Court unless they were brought on record. Their contention was that the decree, therefore, was not binding upon them.