GELHI Vs. NANDA KISHORE PARIDA

JUDGEMENT

(1.) This is an appeal by defendant No. 3 under the Letters Patent against a decision of one of the learned Judges of this Court granting review of the judgment delivered in First Appeal No. 264 of 1969.

(2.) Facts giving rise to this appeal in brief: Title Suit No. 3 of 1967 was instituted for partition of the properties described in Schedules B, C, D, and E of the plaint. Certain properties described in Schedule F had been alienated by defendant No. 3. A declaration had been sought that the said transfers in favour of defendant No. 1 by defendant No. 3 were invalid. There was an issue regarding adoption of plaintiff No. 4. The trial court disbelieved the story of adoption. A preliminary decree decreeing the shares of plaintiffs Nos. 1 to 4 as 1/4, of defendant No. 2 as 1/4, of defendant No. 3 as 1/4 and of defendants 4 to 7 as 1/4 was passed. It was directed that the property alienated would be adjusted from the share of defendant No. 3. Plaintiffs filed first appeal No. 264 of 1969. During the course of the hearing of the first appeal a joint memo was filed on 27-11-74 stating that certain items of property described in Schedules B, C, D and E were to be excluded from partition as those items had been allotted to defendants 4 to 7 in an earlier compromise as per the compromise petition Ext. 1.

(3.) Subsequently, on 16-12-74 another joint memo was filed stating that on verification, it was found that nothing was to be excluded from the suit Schedules B, C, D, E and F as they constituted the balance after exclusion of the properties in Schedule 'Kha' of Ext. 1 and defendants 4 to 7 had already been allotted the properties in Schedule 'Kha' of Ext. 1 and they could not claim anything from the suit property. Defendant No. 3 had died during the pendency of the appeal. It was held that the suit properties excluding those transferred by defendant No. 3 were to be divided half and half-plaintiffs 1 to 3 would get one halt and defendant No. 2 the other Plaintiffs 1 to 4 thereafter filed an application under Order 47, Rule 1 read with Sections 151, 152 and 153 of the Civil P. C. for review of the judgment. It was contended that the expression "excluding those transferred by defendant No. 3" appearing in the concluding paragraph of the judgment was vague general and could be said to comprise all alienations made by defendant No. 3 and not only those impugned in the suit. So the transfer should be restricted to Ext. A only and it was urged that the order was not very definite and would create difficulty in future. In para 10 of the review petition it was stated that defendant No. 3 "sold 2 mnas (sic) of land to deft. No. 1 under Ext. A". Under grounds (a), (b) and (c) objection was taken to the expression of general character as stated above. Ground (d) was innocuous. On the aforesaid grounds, the prayer was for correction of the judgment.