BISHWANATH SAH Vs. SHYAM BHARTI

JUDGEMENT

(1.) Heard learned counsel for the parties,

(2.) Petitioners are plaintiffs of Title Suit No. 176 of 1995 which was decreed on 28.2.2003 under the provision of Order VIII Rule 10, CPC. Thereafter, the defendants-opposite parties filed Miscellaneous Case No. 21 of 2003 under Order IX Rule 13, CPC which was allowed by the impugned order dated 21.8.2004 passed by the learned Second Munsif, Siwan.

(3.) It is not in dispute that the plaintiffs had filed their rejoinder in the Miscellaneous Case on 26.9.2003 raising the question of maintainability of the case on the ground that when the suit is decreed under Order VIII Rule 10, CPC the provision of Order IX Rule 13, CPC can not be made applicable and hence, the Miscellaneous Case was not maintainable at all.