RAJKISHORE DAS Vs. NILAMANI DAS

JUDGEMENT

(1.) THE plaintiff-decree-holder is the petitioner. This revision is directed against an order dated 18-1-68 passed by the Executing Court in Execution Case No. 9/65 letting aside the final decree in O. S. No. ft/66.

(2.) THE sole question raised is that the executing court had no jurisdiction to treat the application of defendant-1 -judgment-debtor under Section 47, C, P. C. as one under Order 9, Rule 13, C. P. C. and exercise jurisdiction in respect of the same-on its original side and set aside the final decree. The second ground of lack of jurisdiction is founded on the allegation that the petition under Section 47, even if treated as one under Order 9, Rule 13. C. P. C is barred by limitation.

(3.) IT is necessary before dealing with the points raised to set out certain salient facts leading upto the passing of the impugned order by the execution court. The plaintiff filed T. S. No. 9/55 for partitioning his eight annas share in the joint family property. In due course, a preliminary decree was passed on 23-7-57 decreeing the plaintiff's moiety share in the suit properties. The son of defendant-1 who is the main contestant in this revision filed an application under Order 9, Rule 13 on 22-1-58 for setting aside the preliminary decree. During the pendency of that application, the preliminary decree was sealed and signed on 8-2-58 and subsequently the petition for setting aside that decree was dismissed for default. Thereafter the plaintiff-petitioner filed an application for passing of the final decree which was dismissed ultimately due to his negligence in taking steps in the matter. Some proceedings by way of appointment of a Civil court Commissioner had taken place in course of this first application, but they are not very material for purpose of this application as ultimately the first application was rejected on 27-1-59. Thereafter the plaintiff-petitioner filed a second application on 12-5-61 for making the decree final. The Court thereupon directed filing of the requisites for issue of notice on defendants by 20th of June, 1961. As this order was not complied with by the plaintiff-petitioner, he was granted further time till 5-7-61 to take steps for service of notice, He again failed to file the requisites for notice thereafter the case was adjourned to 18-7-61 when the plaintiff instead of filing the requisites filed a copy of the decree and deposited the fees for Civil Court commissioner and the Court became oblivious of its previous order and thereby failed to insist upon its compliance for filing the requisites to issue notice of this proceeding. Thereafter steps were taken for nomination of the Civil Court commissoner by the District Judge and after a long lapse of time, ultimately on 29-11-61, one Sri B. N. Chakravarty was nominated at Civil Court Commissioner. A writ was issued to him fixing 8-1-52 for his report. He submitted his report on 13-11-62, which was placed before the Court on 17-11-62. The Court thereafter ordered notice of this report to go to the parties or their lawyers. This proceeding was adjourned once more as the parties had not been informed about it. Later on, it appears, the plaintiff's lawyer Sri Sadhasiv Misra was duly informed, so also one digambar Satpathy as the guardian ad litem of minor defendants, but none of the other defendants including defendant 1 was informed, and naturally one of them appeared either in person or through counsel. On 11-1-63 the Court passed the following order. "both parties have been informed through their lawyers. No objection filed. To 21-1-63 for orders. " on 21-1-63 the case was adjourned to 13-2- 63 where the commissioner's report was accepted and the decree was made final. Thereafter the decree was prepared on 18-7- 64 and was sealed and signed on 22-7-G4.