RAMESH CHANDRA PATI Vs. PRAFULLA KUMAR PATI

JUDGEMENT

(1.) This Writ Petition involves a challenge to the order dated 10.3.2006 passed by the Civil Judge (Sr. Divn.), Bhadrak involving an application U/o-47 read with Section 151 and 152 of C.P.C. bearing Misc. Case No.117 of 2001, whereby in disposal of the Misc. Case No.117 of 2001 the Court below has set aside the judgment and decree passed in T.S. No.41 of 1994.

(2.) Short background involved in this case is that the petitioners herein as the plaintiffs filed T.S. No.41(I) of 1994. The suit was initially filed with a prayer to declare the decree passed earlier in T.S. No.40 of 1969 as a nullity. The suit involves a joint family property and also in the nature of a partition suit filed in the year 1969 for obtaining a decree. Fact further discloses that the contesting opposite parties were declared ex-parte in the suit involving the prayer for declaring the decree in the earlier suit as bad, but however after the present contesting opposite parties were set ex parte, an application for amendment of the suit was filed. The suit was amended involving further prayer for partition of the disputed properties. The suit having been decreed and after the final decree stage is over, the decree was placed for execution vide Execution Case no.23 of 2000. Pending decision in the Execution Case No.23 of 2000 and after being noticed misc. case no.117 of 2000 was moved by the contesting opposite parties under the provision of the Section 47 read with Section 151 and 152 of C.P.C. for declaring the judgment and decree involving the Execution being nullity remain unenforceable. The case of the judgment debtor was that the opposite party i.e. the judgment debtor was defendant no.2 in the original suit and the judgment debtor in the execution proceeding while disclosing that there existed a compromise final decree in the year 1971 and that the records were prepared in the Major settlement based on such judgment and decree, this opposite party the Judgment debtor admitted that for his illness he could not take any step in the suit and therefore an order setting him ex parte was passed by the trial court on 6.01.1998. It was also alleged therein that the present opposite party was even not noticed after the suit got amended and scope of suit being increased for inclusion of a suit for partition. Decree holder the present petitioner resisted the misc. case on the premises that entertaining such application would be amounting to reopening of the suit which is prevented under law.

(3.) The executing court hearing the parties on the application under Section 47 read with Section 151 and 152 of the Code of Civil Procedure while allowing Misc. Case No. 117 of 2001 thereby set aside the judgment and decree involving Title Suit No.41 of 1994.