LAWS(PAT)-1990-10-14

ARUNA SINGH Vs. GAJENDRA MOHAN NARAIN TEWARY

Decided On October 17, 1990
ARUNA SINGH Appellant
V/S
GAJENDRA MOHAN NARAIN TEWARY Respondents

JUDGEMENT

(1.) This is a petition under Section 151 of the Code of Civil Procedure (in short 'the Code'). It has been filed by the sole appellant in the following circumstances. The appellant had filed Title (Partition) Suit No. 90 of 1988 for partition of the joint family property. In the said suit, it appears that she prayed for an order of injunction restraining defendant no. 1 (respondent no. 1) from executing the compromise decree passed in Title (Partition) Suit No. 21/84. By the impugned order dated 7-7-1990, it appears that the Learned 1st Subordinate Judge, Muzaffarpur rejected the petition for injunction filed on behalf of the plaintiff-appellant on 24-11-1989. It is against this order that the present miscellaneous appeal has been filed.

(2.) The appellant also filed a petition under Order XXXIX Rules 1 and 2 of the Code for restraining the respondents from executing the compromise decree passed in Title (Partition) Suit No. 21/84 and restraining them from interfering with the peaceful possession of the appellant over the house in suit during pendency of the appeal. It appears that by the order dated 24-8-1990, the respondents were restrained by an order of an ad interim injunction from executing the compromise decree passed in the aforesaid title suit and from disturbing the possession of the appellant from the house in suit. Also notices were ordered to be issued to respondent nos. 1 to 5 to show-cause why the petition for injunction filed by the appellant be not allowed. Subsequently, this petition under Section 151 of the Code, as referred to above, was filed by the appellant on 5-9-1990. In this petition, the appellant has contended that she was not a party to the compromise decree and the same is, therefore, not binding on her. The execution of the said compromise decree of Title (partition) Suit No. 21/84 has already been stayed by this Court. On the basis of the said decree, Execution Case No. 4 of 1990 has been started before the Learned Subordinate Judge, 1st Court, Patna. The notices were ordered to be issued in the said execution case on the respondents, but it appears that no notice was issued to the appellant. The said compromise decree is dated 24-5-1988. Since the appellant has filed another Partition suit (Title Partition Suit No. 90 of 1988), the respondent no. 1 has hurriedly proceeded in this execution case. In Title (Partition) Suit no. 21/84, the appellant was not a party, and as such, any decree passed in it is not binding on her. However, the appellant has been illegally ousted from the house in suit. She has got no house to stay and all her belongings are still in this house over which the delivery of possession has been effected in the said execution case. It was, accordingly prayed that she may be put back in possession over the portion of the house in suit which was under her occupation.

(3.) On behalf of the respondent no. 1 a counter-affidavit has been filed to this petition of the appellant under Section 151 of the Code. It has been stated in it that since the execution case was not filed against the appellant no notice was required to be issued to her. So far, as respondents are concerned, they were defendants in the Title (Partition) Suit No. 21/84, and notices were issued to them, but they refused to accept the same. The appellant has got no right to speak a word on behalf of respondent no. 2 who is her mother and also on behalf of her sisters. The respondent no. 1 has already taken delivery of possession over the house in suit. The appellant had appeared in the Title (Partition) Suit no. 21/84 no. 7-5-1985 and had filed her Vakalatnama and still she did not join the compromise petition. So it cannot be said that she had no knowledge about the compromise decree and it will be deemed that she accepted the same. Under Section 23 of the Hindu Succession Act, a married daughter had no right to claim a right of resident in the dwelling house of the parents. The appellant lives put side Bihar and she has got her Pncca houses in the village, as well as, in the town of Muzaffarpur, and as such, the appellant cannot challenge the compromise decree passed in Title (Partition) Suit no. 21/84. On these grounds, it has been contended that this petition under Section 151 of the Code is fit to be rejected.