BHIKARI Vs. BODLA

JUDGEMENT

(1.) APPLICANTS in this application have made a prayer that order dated 17. 5. 1991 passed in Regular Second Appeal No. 852 of 1991 be recalled and appeal be decided on merits, after impleading the applicants as parties to the appeal.

(2.) IN order to determine this application, it would be necessary to notice few facts of this case.

(3.) ONE Bhikari and Sohan Pal sons of late Balla son of Nanwa, obtained a collusive decree dated 19. 1. 1992, in a suit filed against Bodla son of Kundan son of Prithi. Bodla filed suit, out of which the present appeal has arisen, for declaration and consequential relief of injunction against Bhikari and Som Pal, with the allegation that he is owner in possession of the property in dispute and the decree alleged to have been suffered by him in favour of said defendants was by way of fraud and impersonation and, therefore, the same is not binding on his rights. He also alleged that he never came to the Court, nor put his thumb-impression on the written statement or made any statement in favour of the defendants. The trial Court dismissed his suit. Bodla then preferred an appeal before the Additional District Judge, Faridabad, who vide judgment and decree dated 21. 5. 1988 set aside the judgment and decree of the trial Court and decreed the suit in favour of Bodla, meaning thereby that decree dated 19. 1. 1982 alleged to. have been suffered by Bodla in favour of Bhikari and Sohan Pal was declared as null and void. As a consequence thereof, Bodla was declared to be owner of the property in dispute. Bodla died on 10. 9. 1989, Regular Second Appeal was preferred in this Court by Bhikhari and Sohan Pal on 29. 7. 1988. This appeal was not numbered as an objection was raised by the Registry with regard to deficiency in the court-fee. On 14. 10. 1988, counsel for the appellant sought an adjournment, and case was adjourned to 28. 10. 1988. On 28. 10 1988, on request of counsel, case was adjourned to 2. 11. 1988. Again on 2. 11. 1988, counsel prayed for a week's adjournment and consequently, the case was adjourned to 10. 11. 1988. Then again on 11. 11. 1988 when the case was taken up by the Taxing Officer, on the request of counsel, it was adjourned to 6. 12. 1988. Before the Taxing Officer could decide the matter with regard to court-fee, an application dated 12. 11. 1988 was filed by the appellants in which a prayer was made that Regular Second Appeal be listed and the respondents be restrained from taking possession forcibly. The matter was listed before the Hon'ble Judge on 26. 11. 1988, when a direction was given to list the case only after the objections are removed by the counsel for the appellants. However, objections, were not removed. Another application was filed on 19. 6. 1989 in which it was stated that the Taxing Officer has not decided the matter and the other party is trying to alienate the property and in case they succeed in their effort, the appeal would become infructuous. This application was listed before the Hon'ble Judge on 21. 6. 1989 when the Taxing Officer was asked to decide the matter with regard to court-fee on or before 17. 8. 1989, and thereafter the appeal was ordered to be listed for hearing on 29. 8. 1989 and till then, the alienation was stayed. It appears from the record that neither the matter with regard to court-fee was decided by the Taxing Officer, nor the case was listed before the Motion Bench, or otherwise. Thereafter, an applcation under Section 151, C. P. C. dated 11. 3. 1991 was filed with a prayer for dismissal of the appeal on the ground that a compromise has taken place between the parties. This application was accompanied by another application namely Civil Misc. No. 1109-C of 1991 under Order 22 Rule 3, C. P. C. for bringing on record the legal representatives of Bodla deceased (who died on 10. 9. 1989 ). The matter came up before me on 8. 4. 1991 when I had directed the CM. to be put up only after the Regular Second Appeal was registered by the Registry and put up for motion hearing. The case was adjourned to 6. 5. 1991 and then to 8. 5. 1991. On 8. 5. 1991, counsel for the respondent made a submission before me that he has already filed a corrected application, but in has not been listed. Accordingly, the Registry was asked to list the application. Civil Misc. No. 1648-C of 1991 was listed in which again a prayer was made that the appeal be accepted and judgment and decree of first appellate Court be set aside and that of trial Court be restored. The compromise, Mark 'c' too was filed. It was because of direction of this Court on 8. 4. 1991 for registering the appeal, that the Registry gave a number to the appeal as R. S. A. No. 852 of 1991. In terms of compromise, mark 'c, vide order dated 17. 5. 1991, the appeal was allowed, judgment and decree of the first appellate Court was set aside and that of the trial Court was restored, with no order as to costs. At that time, neither the counsel for the appellants nor the counsel for the respondent had brought to my notice that Bodla who expired on 10. 9. 1989, infact had sold the property to the applicants vide registered sale-deed dated 30. 6. 1989 for a sum of Rs. 1,02,500/- The execution of the sale-deed has been disclosed only now by the applicants in their application for recalling order dated 17. 5. 1991. Notice of the application was ordered to be issued to the appellants as well as to the respondent, on 2. 6. 1994. The appellants despite service have not appeared. The legal representatives of Bodla, deceased, who were brought on record, too have not appeared despite service. The compromise, referred to above, was filed in this Court only after Bodla, respondent (since expired) had sold the property to the applicants. Therefore, the legal representatives of Bodla were left with no right, title or interest in the property and thus, had no authority in law to enter into compromise after the property had been sold to the applicants. Having regard to these circumstances, I am of the view that order dated 17. 5. 1991 whereby judgment and decree of the first appellate Court was set aside and that of the trial Court was restored, on the basis of compromise, Mark 'c', deserves to be recalled. Accordingly, order dated 17. 5. 1991 is hereby recalled.