PHOLI DIBYA Vs. IDAN BIBI

JUDGEMENT

(1.) JUDGMENT Debtor No. 1 is the petitioner assailing the order of refusal of her application under Order 21, Rule 29, Civil Procedure Code, by the Executing Court.

(2.) AFTER obtaining the preliminary decree for partition was confirmed in this Court in First Appeal, final decree was passed ex parte and the said decree is being executed. Having failed in the first round ' of attack of the decree under Section 47, C. P. C, a suit has been filed by the petitioner in the Court of First Subordinate Judge, Cutback, for specific performance of a contract for sale with the vendor of the decree -holder. Plaintiff -petitioner claims to be in possession of the disputed property delivered to her on the basis of such oral contract or sale in the year 1967.

(3.) THE circumstances under which the discretion is to be exercised has been indicated in a decision of this Court reported in I. L. R. 1970 Cuttack 320 (Judhistir Jena v. Surendra Mohanty and another). It has been observed : 'The fundamental consideration is that the decree has been obtained by a party and he should not be deprived of the fruits of that decree except for good reasons. Until that decree is set aside, it stands good and it should not be lightly dealt with on the off -chance that another suit to set aside the decree might succeed...' It was further observed :