ARBIND KRISHNA ALIAS UDAY KRISHNA Vs. RAMDULARI DEVI

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The petitioner was defendant-Judgement debtor in partition suit No. 7 of 1945 which was originally filed by the predecessor of opposite party Nos. 1 to 11 for partition of their eight annas five daam share in the suit property. The said suit was decreed and Preliminary decree was prepared to the extent of the share claimed by the plaintiff, but the said Preliminary decree was never challenged by any one and it attained finality. Thereafter, Final decree was prepared by the trial Court in the year 1949 against which First Appeal No. 186 of 1949 was filed by the defendant-Judgment debtor which was allowed with certain modification and directions. Against the said Judgment and decree of this Court Civil Appeal No. 1014 of 1964 was filed and the same was allowed by the Hon'ble Apex Court on 6.2.1967 by which the matter was remanded to the trial Court with a direction to take fresh steps for preparation of the Final Decree.

(3.) Accordingly, the trial Court appointed an Advocate Commissioner for Takhtabandi etc., but before he could submit his report he died. In the meantime, on 15.4.1982 a petition for compromise was filed by the parties under the provision of Order XXIII Rule 3 of the Code of Civil Procedure (hereinafter referred to as 'the Code' for the sake of brevity. It further transpires that without looking into the said compromise petition a new Advocate Commissioner was appointed by the Court on 25.1.1985. In the said circumstances, parties again filed the compromise petition on 10.7.1985 but without appreciating the said compromise petition a report was submitted by the Advocate Commissioner on 11.6.1986, which according to the petitioner, was collusive. Hence, the petitioner filed a petition in the trial Court for passing an order as per the compromise. The petitioner's said petition was dismissed by the trial Court on 9/30.11.1987 on the ground that the said Advocate Commissioner had .already submitted his report. In the said matter, two Civil Revisions were filed out of which Civil Revision No. 20 of 1988 was. disposed of by this Court with a direction to the trial Court to consider the petitioner's objection whereas Civil Revision No. 21 of 1988 was disposed of by this Court with a liberty to the petitioner to challenge the said order in Appeal.