JANAKRAJ KUER Vs. PANDIT MUNESHWAR MISRA

JUDGEMENT

(1.) In this Civil revision application, an important question of law has been raised for decision of this Court, namely, as to whether an application under Order IX, Rule 13 of the Code of Civil Procedure can be entertained by the trial Court when the decree itself has been merged in the decree of an appellate Court.

(2.) In order to appreciate the point raised as above, it is necessary to state a few facts of this case. The petitioner instituted a Partition Suit No. 75 of 1959 against his two brothers in the court of the Munsif at Palamau with respect to certain ancestral properties. Both the defendants filed separate written statements but defendant No. 1 did not participate in the hearing of the case and only the second defendant contested the same. The suit, however, was decreed in favour of the plaintiff. Against the preliminary decree, the contesting defendant filed Title Appeal No. 39 of 1961 in the Court of the District Judge at Palamau. In the lower appellate court also defendant No. 1 did not appear. The title appeal ultimately was dismissed on 3rd October, 1964 on merits. Defendant No. 2 also made an attempt in this Court by filing a second appeal (Second Appeal No. 77 of 1965) but the same was dismissed in limine. The final decree was also drawn on 9-9-1967.

(3.) In the year 1971, after all the proceedings were over, defendant No. 1 filed an application under the provisions of Order IX Rule 13 of the Code of Civil Procedure in the trial Court for setting aside the preliminary decree dated 15-9-1961 passed in the said partition suit on the various grounds which are not necessary to be stated as the matter was disposed of by the Court below on a preliminary objection taken on behalf of the petitioner regarding the maintainability of the application under Rule 13, namely, that the decree of the trial Court having been merged in the appellate decree, the application in question for setting aside the preliminary decree of the trial Court was not maintainable. The learned Munsif decided the question of maintainability of the miscellaneous case as a preliminay issue and upheld the objection of the plaintiff and came to the conclusion that the application filed by defendant No. 1 under Order IX, Rule 13 of the Code at this stage was not maintainable. He put reliance upon a Bench decision of the Calcutta High Court in Mono Mohan v. Nripendra Nath, AIR 1937 Cal 548. Against the said order, a miscellaneous appeal was taken by defendant No. 1 to the court of appeal below and the learned District Judge by the impugned order on referring to a decision of the Judicial Commissioner's court of Peshawar in the case of Mt. Ghulam Fatma v. Mt. Bilkis Jan, AIR 1946 Pesh 7 where a view contrary to that expressed by the Calcutta High. Court was taken, set aside the order of the learned Munsif as according to him, in view of the conflicting decisions of the High Courts, it was advisable to determine the case on merit and therefore, the case was remanded. It is against this order of the learned District Judge that the plaintiff has moved this Court in revision as said above.