DORIK NONIA DORIK CHOUHAN Vs. GANESH MAHTON

JUDGEMENT

(1.) THE appellant Dorik Nonia @ Dorik Chouhan has lited this Misc. Appeal against the judgment and order passed by the 4th Additional District Judge. Begusarai in Misc. Appeal No. 35 of 1990/9 of 1991, whereby the learned Additional District Judge confirmed the order dated 1.9.1990 passed by Munsif l, Begusarai in Misc. Case no. 1 of 1990. The learned Munsif has set aside the sale deed executed by the order of the court on the basis of the order dated 22.12.1989 and released the property from the execution proceeding. The execution proceeding was in respect of an exparte decree in favour of the appellant Dorik Nonia @ Dorik Chouhan.

(2.) THE plaintiff, Dorik Nonia @ Dorik Chouhan had filed Title Suit No. 2 of 1986 for a decree for specific performance of contract and prayed for direction to the defendants to execute sale deed in respect to the suit land. The defendants had executed a contract for sale of the suit land in favour of the Plaintiff for consideration of Rs. 4,000/ - after payment of Rs. 1,000/ - by the plaintiff to the defendants, in spite of repeated reminders the defendants did not receive the balance amount of Rs. 3,000/ - and did not execute the sale deed after the stipulated period mentioned in the deed of agreement to execute the sale deed. The suit was decreed ex parte and the execution proceeding, bearing Execution Case no. 12 of 1939 was initiated by the piairtiff decree holder against the defendants of the Title Suit.

(3.) ACCORDING to the appellant notice of the Misc. case was not given to him. It was argued by the learned lawyer for the appellant that notice of the Misc. case was not served on the appellant, Dorik Nonia @ Dorik Chouhan. It appears from the record that the Execution Case No. 12 of 1989 was instituted by appellant Dorik Nonia @ Dorik Chouhan, who was the plaintiff in the Title Suit against Shankar Dass, the judgment debtor who is respondent second party in this appeal. Admittedly, the applicants of the Misc. Case no. 1 of 1990 were not the parties in the Title Suit. According to the order dated 5.5.1990 of the Misc. Case No. 1 of 1990 of the learned Munsif I, Sri Raghuwar Prasad, Advocate of the Decree holder opposite party was not working on behalf of the decree holder and the Misc. Case was heard ex parte. This clearly shows that the appellant of this appeal was not informed in the Misc. Case No. 1 of 1990. The Misc. Case No. 1 of 1990 instituted by Ganesh Mahton and Naresh Mahton, who were not parties in the Title Suit and who are respondents first party in the present appeal, had been heard and disposed of ex parte. The Misc. Appeal No. 35 of 1990/ 9 of 1991 had been filed against the order dated 1.9.1990 passed in Misc. Case No. 1 of 1990 by the Munsif I, Begusarai. Admittedly, the appellant was not informed by the applicants of the Misc. Case no. 1 of 1990 and notice was not served on the appellant and the Misc. Case No. 1 of 1990 was heard and disposed of ex parte by the learned Munsif. No one had appeared on behalf of the respondents during the hearing of this appeal.