BAD-UZ-ZAMA Vs. ALIUR RAHMAN

JUDGEMENT

(1.) THE defendants second parties are the petitioners in this revision application. They have challenged the order dated 29th April, 1994 passed in Misc. Case No. 11/88. By the impugned order the learned 6th Subordinate Judge. Bhagalpur while allowed the Misc. Case No. 11/88. set aside the preliminary decree and final decree and restored Title Suit No. 204/80 to its original stage.

(2.) A Title Suit No. 204/80 was filed by Opposite Party Nos. 3 to 6 for partition of the suit land. The Opposite Party Nos. 3 to 6 are the sisters of Opposite Party Nos. 1 and 2. It appears that subsequently on the basis of a compromise petition, an ex parte preliminary decree was passed in the suit on 24th August, 1987, by which the plaintiffs were directed to take steps for appointment of Pleader Commissioner to carve out separate Patti. Subsequently, the defendants of the suit filed a petition for recalling the order of appointment of Pleader Commissioner on the ground that the same was not necessary in the light of the compromise petition. Thereafter, final judgment and decree were passed on 19th March 1988/07th April 1988 Subsequently Opposite Party 1st set (Aliur Rahman and Abdul Aziz) filed a petition under Order 9, Rule 13 read with Section 151, C.P.C. for setting aside the ex parte preliminary decree and final decree. The same was registered as Misc. Case No. 11/88. It was submitted on behalf of the Opposite party 1st set that in the title suit, though the parties agreed for compromise and the opposite party 1st sot had admitted that the compromise petition will be drafted and placed before them, but subsequently it came to their notice after leaving the Court that a preliminary decree has been prepared on the basis of a so called compromise petition dated 14th July, 1987 which was only signed by the Opposite parties and their lawyers and not by the opposite party 1st set, who were parties to the said suit. It was alleged that the compromise decree was obtained by the parties fraudulently allotting worst of the plots in favour of the opposite party 1st set, who are the applicants of the Misc. Case No. 11/88.

(3.) THE counsel for the petitioners submitted that only one application was filed by the Opposite party 1st set for setting aside both the preliminary and final decree. Further, according to him, the said petition under Order 9 Rule 13 read with Section 151, C.P.C. having been filed on 12th May, 1988, the petition was barred by limitation and was not maintainable According to him, the court below would not have allowed the same in absence of a petition, for condonation of delay.