SATYA NANDI Vs. SWAPAN NANDI

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 15 -11 -2007 passed by the Executing Court, i.e. the learned Civil Judge (Senior Division), West Tripura, Agartala in case No. Misc. 02 of 2007 arising out of Title (Execution) case No. 06 of 2006 whereby the Executing Court held that the decree passed in favour of the petitioner -decree holder is not executable in its present form and nature and dismissed the execution petition.

(2.) BRIEFLY stated, the facts of the case are that the petitioners along with others filed a suit for partition of property described in the plaint schedule. On notice being issued, defendant Nos. 2 to 5 filed written statement supporting the case of the plaintiffs and defendant No. 1 did not file any written statement. Thereafter, preliminary decree was passed on 27 -04 -1998 and the shares of the parties were determined. The learned trial Judge held that the plaintiff No. 1 was entitled to get half share in the suit land and that the plaintiff Nos. 2, 3 and 5 jointly with defendant No. 1 were together entitled to 1/4th share in the suit land, i.e. defendant No. 1 was entitled to 1/16th share in the suit land. The remaining 1/4th share was to go to defendant Nos. 2, 3, 4 and 5 and plaintiff Nos. 4, 6, 7, 8 and 9 jointly.

(3.) AFTER the final decree was passed, the decree holder -petitioners filed application for execution of the decree under Order XXI Rule 11 of the Code of Civil Procedure (CPC) and the said application was registered as Title (Execution) No. 06 of 2006. Notice was issued to the Judgment debtor -respondents but only the original defendant No. 1 who was arrayed as Judgment debtor No. 1 appeared in the Court and filed objections under section 47 of the CPC. In these objections, the stand of the defendant No. 1 Judgment debtor No. 1 was that he was the real brother of the petitioners and in the year 1978 the petitioners informed him that a suit for partition of the property left behind by their father was filed and he was told that he would get an equal share in the property left by their father. The Judgment debtor was seriously ill at that time and, therefore, at the asking of the plaintiffs, he did not contest the suit and the decree had been obtained fraudulently.