LAXMI RAI Vs. SANJAI BHATTACHARYA

JUDGEMENT

(1.) The judgment- debtors are the petitioners in the present civil revision application preferred under the provisions of section 115 of the Code of Civil Procedure (herein after referred to as "the Code'), and challenge the order dated 14.9.2007, passed by the learped Additional District Judge, Fast Track Court I, Katihar, in Title Appeal no.22/93, whereby the application preferred by them under the provisions of section 107, read with Order 23 Rule 1(1) of the Code, has been rejected, and their application for permission to withdraw the appeal has been rejected.

(2.) A brief statement of facts essential for the disposal of this application may be indicated. The opposite parties herein had instituted Title Suit no. 16/85, for declaration of title and recovery of possession against the present petitioners. The same was allowed by judgment and decree dated 23.9.93, passed by the learned Sub Judge III, Katihar. Aggrieved by the same, the defendants (petitioners herein) preferred the aforesaid appeal. The appellants, i.e. the judgment-debtors (petitioners herein), filed an application under Order 23, Rule 1, read with section 107 of the Code on 25.7.2007, before the learned appellate court seeking permission to withdraw the appeal, inter alia, on the ground that the decree has become inexecutable because the decree-holders had levied execution bearing Execution Case no. 1/2007, before the learned Sub Judge, Katihar, having been filed beyond the prescribed period of limitation. On contest, and by a detailed order, the learned appellate court has rejected the application seeking permission to withdraw the appeal on various grounds. Hence this civil revision application at the instance of the judgment-debtors.

(3.) While assailing the validity of the impugned order, learned counsel for the judgment-debtors submits that there is no cause of action for the appeal execution case having been levied after expiry of the period of limitation. He next submits that the plaintiff, or for that matter the appellant, had an absolute right to withdraw the same particularly in a situation where no appeal, cross-objection, counter-claim, set off at the instance of the decree-holders, has been preferred. He submits in the same vein that the appellant seeks permission to withdraw the appeal unconditionally and with a clear undertaking to the court not to re-file the appeal against the judgment and decree of the learned trial court under any circumstance whatsoever. He relies on the following reported judgments:-