SURENDRANATH SAHOO Vs. MAHENDRA SAMANTARAY

JUDGEMENT

(1.) THIS writ application has been filed by the petitioner challenging the order dated 22.1.2003 passed by the learned Addl. Civil Judge (Senior Division), Puri in Misc. Case No.6 of 2001 arising out of Execution Case No.6 of 2000 rejecting the prayer for amendment. The facts of the case are as follows:

(2.) THE present petitioner is the judgment debtor and the opposite parties are the decree holders. The opposite parties -decree holders instituted a suit for declaration of their right to re -purchase the interest of their co -sharers and a decree for permanent injunction restraining the stranger purchaser from disturbing their possession. The subject -matter of the suit was the dwelling house constructed by the predecessor -in -interest of the opposite parties plaintiffs prior to 1965. The petitioner purchased half share of the said dwelling house from defendant no.2 to 4, the co -sharers of the plaintiffs, by a registered sale deed dated 28.3.1971 and also purchased 4 annas interest in respect of the said house from defendant no.6, another co -sharer, by registered sale deed dated 1.7.1978. The plaintiffs inter alia alleged that the dwelling house belonged to an undivided Hindu family and the petitioner being a stranger purchaser, was not entitled to joint possession. The co -sharers -defendants did not contest the suit. The petitioner alone contested the suit as he purchased 3/4th portion of the suit house from the co -sharers. The petitioner specifically stated that the portion he purchased was partitioned by metes and bounds before the said purchase. He was in possession of the said portion which was distinct and separate from the other portion in occupation of the plaintiffs by intervening wall. Both the partitions have their separate egress and ingress. The plaintiffs suit was decreed on the finding that the dwelling house was never partitioned and Second Appeal No.13 of 1987 filed by the petitioner was dismissed as no substantial question of law was involved. Thereafter, the petitioner filed SLP (Civil) No.19882 of 1998 before the apex Court. The apex Court issued notice to find out whether respondent no 1 to 3 (plaintiffs -opposite parties) would be agreeable to re -purchase the share which the petitioner had purchased from the other co -sharers. The SLP was disposed of on the statement made on behalf of the respondents -plaintiffs that they were willing to re -purchase the portion which was purchased by the petitioner from the other co -sharers in the year 1998. Now the judgment debtor -petitioner has come forward with the plea that the plaintiffs had never purchased the suit property from the petitioner by a registered sale deed of the year 1998. The petitioner raised all his questions in the execution proceedings by filing an application under Section 47 of the Civil Procedure Code which was registered as Misc. Case No.6 of 2001 stating therein that the decree under the execution case was void or opposed to law as there was no prayer for partition on the basis of which a prayer under Section 4 of the Partition Act for re -purchase could have been granted. The Petitioner urged that the decree holders did not have any title in respect of the suit property from which they have sought dispossession of the judgment debtor and also urged that the execution of the decree could not be granted after lapse of more than twelve years from the date of decree. Further, inter alia, he stated that the co -sharers having alienated their shares in favour of the petitioner, they have no subsisting title and have not retained any authority to execute successive sale deeds inasmuch as the petitioner lost his rights whatsoever. The petitioner being the bona fide purchaser was entitled to the suit property in exclusion of all others including the subsequent purchasers. The plaintiffs -decree holders had never purchased the property from the petitioner. Therefore, they were not entitled to get recovery of possession of the disputed property from the petitioner in the execution case and hence the petitioner filed an application under Section 47 of the Civil Procedure Code for amendment of the application. After considering the application for amendment and the objection thereto, the learned Additional Civil Judge (Senior Division), Puri rejected the said application on 22.1.2003 on the ground of delay and that the amendment sought would change the nature and character of the application.

(3.) LEARNED counsel for the opposite parties vehemently argued that the petitioner -judgment debtor has failed to substantiate his rights over the disputed property as he lost in the Second Appeal before this Court as well as in the SLP before the apex Court. The plaintiffs -decree holders, having re -purchased the shares of the co -sharers, are entitled to recovery of possession and the decree passed by the trial court having been merged in the Second Appeal, the limitation period starts from the date of the decree passed in the Second Appeal. Therefore, the decree holders are entitled to get the fruits of the decree and the judgment debtor with an intention to delay and harass the decree holders filed this application for amendment and the executing court rightly rejected the same.