SUNDAR SAHU Vs. JOGESWAR DAS

JUDGEMENT

(1.) THIS appeal is by the judgment-debtor claimant in Execution Case No. 102 of 1960 from the decision of a learned Single Judge of this court dated 1-1-1973 preferred under clause 10 of the Letters Patent read with Article 12 of the Orissa High Court's Order, 1948.

(2.) THIS litigation has a chequered background which it is necessary here to recount in order to appreciate the points involved. Chamar, Sundar and Bhikari were three brothers. Sundar had four sons, one of whom was Makhan. Chamar incurred a loan from one Jogeswar, the decree-holder-respondent in this appeal, and died without repaying the same. Before his death he filed a partition suit (T. S. No. 28 of 1950) in the court of the Subordinate Judge, Sambalpur, claiming his share against his two brothers, namely, Sundar and Bhikari and their sons. A preliminary decree was passed in the said suit on 18-3-1955 in which Chamar's share was determined to be one-third. Likewise the share of Sundar and his sons as one unit and the share of Bhikari and his sons as another unit were determined at one-third each. Subsequent to this preliminary decree, as stated above, Chamar died on 2-3-1957. The respondent-creditor filed money suit No. 58 of 1957 against Sundar and Bhikari and the former's natural son Makhan for realisation of his loan which he had advanced to Chamar under a handnote dated 9-6-1954 for a sum of Rs. 900/-. In this suit Makhan claimed to be the adopted son of Chamar. THIS money suit was decreed on contest with costs on 25-8-1958 against Makhan on his own admission that he was the adopted son of Chamar, but was dismissed also on contest against Sundar and Bhikari. Subsequent to this decree, on 8-12-1958, a compromise final decree in the partition suit was passed. In the course of the final decree proceeding Bhikari, one of the brothers of Chamar, filed a petition stating that since Chamar had died on 2-3-1957, he and his brother Sundar were his sole legal representatives and prayed that Chamar's name be struck off and that his share be divided between him and brother Sundar in two equal shares. The learned Subordinate Judge disposed of this application by his order on 13-11-1957 in which he held that Makhan was not the adopted son of Chamar and directed that the share of the deceased Chamar devolved on Sundar and his sons as one unit and Bhikari and his sons as another unit. On the basis of this determination the final decree was passed. THIS order of the Subordinate Judge dated 13-11-1957 and final decree dated 8-12-1958 have become final between the parties as no appeal was preferred from it by any of the concerned parties. It is true that under the Hindu law, Chamar's one-third interest on his death, after the passing of the preliminary decree disrupting the joint status, would devolve on his two brothers, namely, Sundar and Bhikari by succession and their sons would have no interest in the same, but the learned Subordinate Judge allotted one-half of Chamar's share to Sundar and his sons and the other half to Bhikari and his sons whereby the sons on the strength of the final decree got a share in Chamar's interest which otherwise they would not have got. Rightly or wrongly the final decree has become final between the parties and it is no longer open to any of the parties to the partition suit to contest the correctness of that final decree by which the sons of Sundar and Bhikari have acquired a share in Chamar's one-third interest.