SURENDRANATH SAHOO Vs. MAHENDRA SAMANTRAY

JUDGEMENT

(1.) THIS revision petition has been filed against an order passed by the executing court on an application under Section 47 of the C.P.C. filed by the petitioner in Execution Case No. 6 of 2000. The said application under Section 47 C.P.C. was registered as Misc. Case No. 6 of 2001.

(2.) THE facts leading to the execution petition are that a suit was filed by the decree holders-plaintiffs numbered as T.S. No. 125/64 of 83/80 for declaration of their right to repurchase the shares of defendant nos. 2 to 6 and for permanent injunction against the defendant no.1, who was astranger purchaser from the co-sharers. THE learned trial courtdecreed the suit holding that the stranger purchaser-defendanthas failed to establish the fact of partition of the suit propertyamongst the co-sharers and the sale of the portions of theproperty is void and under such circumstances, the documentsexhibited on behalf of defendant no.1 cannot be taken intoaccount to arrive at a conclusion that the defendant no.1 hasacquired valid title to the suit property. He further held thatafter the sale becomes void, delivery of possession on account ofthe sale is illegal and found that the suit property is undividedjoint family property of the plaintiff and defendant nos. 2 to 6.THE order in the judgment was that the suit is decreed oncontest against the defendant no.1 with cost and ex parteagainst other defendants without cost and it is declared that theplaintiffs have option to purchase the shares of defendant nos.2 to 6 at the prevailing market price during the time ofinstitution of the suit and the defendant no.1 is permanentlyrestrained from interfering in the plaintiff's possession over thesuit property and from destroying, damaging or making anywaste of the same. THE petitioner preferred an appeal againstthe said judgment and decree, which was registered as TitleAppeal No. 34/1 of 1985/84 and was disposed of by the learned 2nd Additional District Judge, Puri. In the first appeal, theappellate court held that the findings of the learned trial courtthat the plaintiffs cannot exercise the right of repurchase underSection 4 of the Partition Act, inasmuch as the suit is not onefor partition and its conclusion giving a declaration that theplaintiffs have option to purchase the shares of defendant nos.2 to 6 at the prevailing market price is confusing and has to beset at rest. THE first appellate court, therefore, held that theappellant being a stranger purchaser is liable to be evicted fromthe suit house if already in possession or permanentlyrestrained from getting into possession on the footing that thedwelling house in dispute belongs to an undivided family theconstituent members of which are the plaintiffs and defendants2 to 6. With regard to the question as to whether the plaintiffscan exercise option to repurchase the shares since alienated tothe appellant, according to the learned appellate court, willarise for consideration only when the question of partition isagitated either at the instance of the appellant or otherwise.THErefore, the learned appellate court concluded that theplaintiffs are entitled to a permanent injunction or a decree foreviction, as the case may be, against the appellant. He modifiedthe decree setting aside the declaration that the plaintiffs havethe option to purchase the shares of defendants 2 to 6 and directing that the appellant (defendant no.1) if already inpossession, shall vacate the building within one month hence,failing which the plaintiffs shall be at liberty to evict himthrough court. If the appellant is not in possession, he shall bepermanently restrained from entering into the disputed house.