DEVI KANT MISHRA Vs. KANT PATHAK

JUDGEMENT

(1.) This miscellaneous appeal is directed against the order of the 1st Subordinate Judge, Arrah, allowing miscellaneous case No. 105 of 1968. By this order the learned Subordinate Judge held that the execution case, being execution case No. 170 of 1965, was barred by time.

(2.) The relevant facts may be stated. Title suit No. 25 of 1944 was filed for partition of the suit properties by the appellants who were plaintiffs in the suit. On 15th January, 1946 a compromise decree was passed. This compromise decree not only defined the shares of the parties but on the basis of the compromise petition made allotment of specific properties to the different parties. No further step appears to have been taken for a long time. On 27th July, 1965 defendant No. 6 filed an application for preparation of the final decree. Non-judicial stamp was filed on 14th August, 1965. On 28th August, 1965 the final decree was signed. The final decree gives the date of decree as 15th January, 1946. Execution case No. 1.70 of 1965 was filed on 14th December, 1965 by the plaintiffs. Notice under Order XXI, Rule 22 of the Code of Civil Procedure was served. Shrikant Pathak appeared and filed a petition praying for stay of the execution case till the disposal of miscellaneous case No. 71 of 1965. This miscellaneous case was filed by Shrikant Pathak and others under Order IX, Rule 13 of the Code of Civil Procedure for setting aside what was termed as ex parte decree. The application for stay was rejected on 15th September, 1966. On the rejection of this application, an application was filed praying for time in order to bring stay order from the High Court. On the same date the decree-holders filed an application praying for an order for issue of delivery of possession. The learned Subordinate Judge directed that an affidavit should be filed by the judgment-debtor stating that he is moving the High Court for stay. Subsequently he granted time in order to enable the judgment-debtor to obtain order of stay from the High Court. On 12th October, 1966 an order of interim stay passed by the High Court in First Appeal No. 407 of 1965 was received. This order stayed the execution case, except in respect of cost. The learned Subordinate Judge, therefore, ordered the execution proceeding to be stayed. The matter remained pending for a long time. The final order of the High Court dated 22nd August, 1968 passed in the aforesaid First appeal was received by the learned Subordinate Judge on 26th August, 1968 which was not the date fixed in the execution case. On that date, i.e., 26th August, 1968 the following order was passed:

(3.) Two contentions have been raised on behalf of the appellants by Mr. Thakur Prasad. Firstly, he contended that the execution petition was not barred by limitation and, secondly, he urged that the objection to the executability of the decree was barred by the principles of constructive res judicata. This, he says, is because of the order dated 26th August, 1968 which, according to the learned counsel, amounts to an implied adjudication that the decree was executable.