PUNI DEVI SAHU Vs. JAGANNATH MOHAPATRA

JUDGEMENT

(1.) The short question that arises for consideration in the present Second Appeal is whether the decree of the trial Judge passed in T. S. No. 26 of 1967 can be said to have been modified or varied in Second Appeal No. 54/ 75 by which judgment this Court did not interfere with the decree directing refund of consideration money but reduced the rate of interest from 12 per cent to 6 per cent. The aforesaid question crops up for consideration in view of the order of restitution passed under Section 144, C.P.C. Section 144, C.P.C. is extracted hereinbelow in extenso:

(2.) 1.60 acres of land appertaining to survey No. 277/2 in Mouza Purusottampur was purchased under a registered sale deed dated 25-4-1967 by the plaintiffs in T.S. 26/ 67 for a consideration of Rs. 4000/-. When they attempted to take possession of the land, defendants 2 and 3 resisted and, therefore, the plaintiffs filed T.S. 26/67 on 11-8-1967 for recovery of possession of the property or in the alternative for recovery of consideration amount which the plaintiffs had paid to defendant No. 1. The Subordinate Judge found the title of the property with defendants 2 and 3 but on the finding that the plaintiffs had paid the consideration amount of Rs. 4000/-to defendant No. 1 decreed the suit granting alternative relief of refund of consideration money together with interest at the rate of 12 per cent per annum from the date of the decree. The judgment in the suit was delivered on 27-10-1973. The plaintiffs then levied execution on 9-2-1974 for realisation of the decretal amount being Execution Proceeding No. 1 / 74. The judgment of the learned Subordinate Judge in T.S. 26/ 67 was assailed in appeal by defendant No. 1 in T.A. 3/74. The appellate Court stayed the execution proceeding in E. P. No. 1 / 74 by order dated 10-4-1964 subject to the condition that defendant No. 1 would furnish personal security to the extent of Rs. 4000/-to the satisfaction of the Subordinate Judge and will pay cost accrued in favour of the plaintiffs. The said order of stay, however, stood vacated as the security bond furnished by defendant No. 1 was not registered. The T. A. 3/ 74 was ultimately dismissed on merits by the lower appellate court on 5-10-1974. Defendant No. 1 preferred a second appeal against the aforesaid appellate judgment which was registered as S.A. 54/75. In the execution proceeding in E.P. No. 1 / 74 defendant No. 1 did not contest even though there was valid service of notice. In the said execution proceeding proclamation for sale was executed on 14-7-1975 and the sale was held on 21-7-1975. Plaintiff No. 2 being the highest bidder purchased the disputed property for a sum of Rs. 4200/- and the sale was confirmed on 26-8-1975. The said plaintiff No. 2 took delivery of possession of the suit premises on 29-12-1975. The Second Appeal No. 54; 75 filed by defendant No. 1 was disposed of by this Court on 17-11-1977 and this Court though confirmed the judgments of the forums below with regard to the refund of consideration amount but directed that the said consideration amount would be paid along with the interest at the rate of 6 per cent instead of 12 per cent as directed by the trial Court. Defendant No. 1 then filed an application invoking the jurisdiction of the trial Court under Section 144, C.P.C. for restitution of possession of the house in question and that application was registered as KJC No.67/78. The learned trial Judge allowed the said application by order dated 31-1-1983 inter alia on the findings that the plaintiffs in T.S. 26/67 had suppressed the valuation notice and had practised fraud upon the Court in getting the house sold for a sum of Rs. 4200/- which was grossly prejudicial to the interest of defendant No. 1 and that judgment of this Court in S.A. 54/ 75 amounts to variance of the decree of the trial Judge thereby entitling the Court to grant the relief of restitution. The aforesaid judgment of the trial Court dated 31-1-1983 was appealed against by the plaintiff which was registered as T.A. 18/83. The lower appellate Court dismissed the appeal having confirmed the findings of the trial Court and hence the present Second Appeal.

(3.) The learned counsel for the appellants contends that the decree passed by the trial Court in T.S. 26/67 has not been varied by this Court in S.A. 54/75 and only the rate of interest granted by the trial Court has been reduced from 12 per cent to 6 per cent. Therefore, the decree in question not having been varied or reversed, the provisions of Section 144, C.P.C. will have no application. It is further contended that in the absence of fraud being pleaded and there being no material to establish the same, the courts below committed gross error in coming to a conclusion that the plaintiffs had practised fraud in getting the house sold for a sum of Rs. 4200/-.