BIDHU BHUSAN NAYAK Vs. SAROJINI NAYAK

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 24.2.2006 passedby the learned Addl. District Judge, Bhadrak in Civil Revision Petition No.13 of 2005dismissing the revision which was filed challenging the order dated 8.11.2005 passed bythe learned Civil Judge (Senior Division), Bhadrak in Misc. Case No.93 of 1996 rejectingan application filed under Section 47 of the Civil Procedure Code.

(2.) THE brief facts of the case are as follows: THE judgment debtor nos.1, 3 and 4 who are the sons of defendant no.1 in TitleSuit No.136 of 1976 filed an application under Section 47 read with Section 151 andOrder 32 Rules-3, 3(A), 4, 7(2) read with Sections 10 and 15 of the Civil Procedure Coderaising a question that defendant nos.16 to 19 who are judgment-debtor nos.21 to 24 arefamily deities of the parties. From the order dated 26.7.1985 of the final decreeproceeding, it appears that the deities refused to receive the summons. In the suit, 'Ga'Schedule properties were allotted to the parties but there was no instruction in thedecree as to how worship and management of those deities should be done. THE trialcourt though described the case of the deities who had been installed by the ancestor ofthe parties, the elder branch of the family generationwise enjoyed the said scheduleproperties and managed the day-to-day affairs of the deities. THE plaintiff and defendantno.3 were the employees of South Railways Department. Without making anyarrangement for the deities, they included the suit properties for their mutual benefits.Defendant no.15 was a minor. THE trial court engaged an advocate for her guardian.However, he did not represent the said minor at the time of hearing. As she was set exparte, her interest had been relinquished in favour of defendant no.3. DefendantNo.1(Ka) was declared dead vide order dated 14.12.1981. Accordingly, the said branchcould not contest the case properly. Subsequently, some person filed an objection under Section 47 of the Civil Procedure Code as judgment-debtor 1(ka) to declare thejudgment and decree passed in the suit as a nullity, void and the same was not capableof execution. THE decree-holders filed their objection to the said application stating thatthe executing court could not go behind the decree and the allegations made by thejudgment-debtors were false and baseless. THE executing court, after hearing the partiesand analyzing the facts and circumstances of the case, held that the present petitioners are sons of Niranjan Nayak-defendant no.1 and the plaintiff is the brother of defendantno.1. Defendant nos.2,4 and 5 are other brothers and sisters of the plaintiff. THE partiesadmitted that defendant nos.16 to 19 (JDr 21 to 24) are represented by defendant no.1to 15 who are co-sharers. THErefore, there was no necessity for appointment of guardianwhen they had been properly represented. So far as defendant no.15 and other so-called persons are concerned, none of the parties challenged the preliminary decree.Hence, the final decree was drawn according to the preliminary decree and after longlapse of several years the present petitioners challenged the preliminary decree only tolinger the process by way of dilatory tactics. THErefore, the trial court rejected the saidmisc. case.