RAHEMAN Vs. SIRAJUDDIN

JUDGEMENT

(1.) Following facts which find mentioned in Civil Revision No. 830 of 1988 and the impugned judgment of the learned Additional District Judge, Bhadrak in Misc. Appeal No. 75 of 1999 are not in dispute.

(2.) Petitioner filed O. S. No. 70 of 1973 in the Court of Subordinate Judge, Bhadrak with the prayer for partition. On 29-1-1974 preliminary decree was passed. On 20-8-1977 final decree was passed. It was directed therein that the disputed property would be allotted to the share of the plaintiff. That decree was put to execution in Execution Case No. 29 of 1978. The defendant -judgment debtor No. 2 i.e., present opposite party filed an objection and claimed benefit of right of pre-emption under Section 4 of the Partition Act on the ground that plaintiff is a stranger to the family and he (opp. party) is entitled to the preferential claim under Section 4 of the said Act. Petitioner questioned maintainability of such application in course of the Execution Proceeding. On 26-4-1978 the Executing Court held such application under Section 4 of the Partition Act to be maintainable. Petitioner assailed that order In Misc. Appeal No. 102 of 1978 and Civil Revision No. 297-of 1978. A learned single Judge of this Court heard the said appeal and revision and on due consideration of the facts and circumstances upheld the order of the Court below by a common judgment delivered on 15-11-1979. As against that, petitioner preferred A. H. O.,No. 10 of 1979 and that was also dismissed with an observation as noted by learned Additional District Judge that "it was open to the petitioner to move Executing Court for review of his order dated 26-4-1978". Thereafter, petitioner filed application in the Executing Court to recall the order dated 26-4-1978. That was registered as Misc. Case No. 78 of 1980. Petitioner also filed Misc. Appeal No. 131 of 1980 against the order which the Executing Court passed during pendency of the A. H. C. permitting the judgment debtor i.e., opposite party to deposit a sum of Rs. 975/- towards value of the land. That Misc. Appeal was dismissed by this Court on 18-6-1986. On 22-9-1988 the Executing Court rejected the application vide Misc. Case No. 70 of 1980 and as against that, petitioner filed Civil Revision No. 830 of 1988. This court after taking note of all the aforesaid facts and developments and different orders passed on the subject by the different forums dismissed the Civil Revision and held that "The impugned order is one rejecting the application for review. Having gone through the said order, I do not find any error of law or error of jurisdiction committed by the Executing Court so as to be interfered with by this court in exercise of power under Section 115 of the Code of Civil Procedure." That Civil Revision was decided on 28-3-1991. When the matter was set at rest in that manner, on 2-7-1997 petitioner filed application under Section 47, read with Order 20, Rule 14, CPC, inter alia, contending that as per the order relating to pre-emption, opposite party was supposed to deposit Rs. 1017/- I.e., Rs.975/- towards valuation of the land, Rs. 17/- towards cost of the trees and Rs.25/- towards the proportionate valuation of the common passage and besides that the opposite party was also to deposit cost of Rs. 72.40 paise and such amount having not been deposited in its entirety by 13-3-1980, therefore, the order of pre-emption is not executable and in that respect deposit of Rs.992/- on 20-3-1980 does not save the situation: Regarding the delay in filing such application, petitioner explained that he came to know about such short deposit after perusal of record on 23-6-1997.

(3.) Learned Civil Judge (Senior Division), Bhadrak on 4-10-1999 disposed of that Misc. case by rejecting the application filed by the petitioner with reference to different orders passed and particularly to the orders passed in the executing Court on 28-2-1980, 13-3-1980 and 20-3-1980. He observed that mistake committed by the Court for not giving specific date for deposit and also not directing for deposit of the cost of the execution does not amount to breach of the order by the opposite party for due implementation of the order on pre-emption so as to defend his right under Section 4 of the Partition Act. Petitioner challenged that order in Misc. Appeal No. 75 of 1999. Learned Additional District Judge, Bhadrak dismissed that appeal on merit as per the impugned judgement delivered on 4-12-2002. The lower appellate Court while concurring with the view of the executing Court also observed that after a lapse of about 17 years from the date of the deposit, petitioner's aforesaid contention that he was not aware of such deposit is not believable when petitioner is in crossed swords situation with the opposite party all through out.