KEDAR NATH Vs. DWARIKA NATH

JUDGEMENT

(1.) In this civil revision petition, the petitioner has challenged the latter portion of the order dated 9th April, 1981, passed by the Subordinate Judge, Siwan, in Execution Case No. 12 of 1979.

(2.) By the latter portion of the impugned order, the Court below is of opinion that the decree is inexecutable. The Court below is of the view that as the parties have compromised the suit, the decree cannot be executed.

(3.) This matter arises out of a final decree passed in a partition suit. By virtue of the preliminary decree, the petitioner was given one-third share in the suit properties. Partition Suit No. 524 of 1972 was filed by the plaintiff-opposite party No. 1 for partition of the joint family properties between the three sons of Braj Kumar Sahay. The three sons are Dr. Ayodhya Nath Sinha, Dwarika Nath Sinha (the plaintiff opposite party No. 1) and Dr. Kedar Nath Sinha (the petitioner). Therefore, each brother got one-third share in the suit properties. After the passing of the preliminary decree and during the pendency of the preparation for final decree, the parties entered into a compromise and the final decree was passed in terms of the compromise. The parties could not get delivery of possession according to the terms of the compromise and as such the petitioner levied Execution Case No. 12 of 1979 in the Court of the Subordinate Judge, Siwan, and prayed for delivery of possession. The petitioner deposited Rs. 200/- as Commissioner's fee for effecting delivery of possession in pursuance of the direction of the Court on 12-2-1981. By the impugned order, the Court below refused to recall the order dated 12-2-1981. Later on, by the impugned order, the Court below held that the decree was inexecutable on the ground that the parties had entered into compromise. It is against this part of the order that this civil revision petition has been filed by the petitioner before this Court.