ASHRAF HUSSAIN Vs. BIBI NAYEEMA KHATOON

JUDGEMENT

(1.) HEARD learned counsel for the petitioner. No one appears for the opposite parties although several notices were sent to the opposite parties and had been validly served.

(2.) THIS Civil Revision has been filed by defendant no. 5 -opposite party -petitioner against order dated 21.8.2004 passed in Misc. Case No. 1 of 2001, by which the learned Subordinate Judge -Ill, Aurangabad, rejected the application of the petitioner to dismiss the aforesaid miscellaneous case filed by opposite party first set as not maintainable. This matter arises out of Partition Suit No. 99 of 1984, which has filed by the opposite party first set for partition of their 1/3rd share. The petitioner was defendant in the said suit, which was decreed on 10.12.1986 by the learned Subordinate Judge -III, Aurangabad, and a preliminary decree was prepared, whereafter a final decree was also prepared on 19.4.1987 as per the aforesaid preliminary decree of the trial court. For execution of the aforesaid decree, Execution Case No. 5 of 1987 was filed by the plaintiffs, whereafter a compromise petition was filed on 1.12.1989 and in view of the said compromise petition, the execution proceeding was dropped on 1.12.1989.

(3.) THE aforesaid judgment and preliminary decree of the learned court below was challenged by defendant no. 5 -petitioner in Title Appeal No. 6 of 1987 (57 of 1991) and in the said title appeal a compromise petition was filed on behalf of the parties on 17.11.1992 and the suit was decreed in terms of the compromise by order dated 21.11.1992 and a final decree in terms of the said compromise petition was prepared, signed and sealed on 12.4.1993. The said decree of the lower appellate court has not been challenged by anyone.