RAMADHAR SINGH Vs. SADAN PRASAD

JUDGEMENT

(1.) THIS Civil Revision application is directed against the order dated 22.7.1996 passed by the Execution Munsif, Civil Court, Patna, in Execution Case No. 4 of 1994 by which the Court below rejected the petitions of the judgment debtor petitioner wherein prayer was made for dismissal of the aforesaid Execution Case No. 4 of 1994.

(2.) FOR better appreciation of the case of the parties, some facts in detail are necessary to be stated herein. The plaintiffs opposite parties 1 and 2 filed Partition (Title) Suit No. 44 of 1962 for partition of their 1/3rd share in the suit property, consisting of three plots, being Plot Nos. 768, 772 and 773, situated in Mohalla Mahendra, P.S. Sultanganj, within the district of Patna. The suit properties originally belonged to one Bisheshwar Mistri, who died intestate in the year 1956, leaving behind his widow, named, Sundari Devi and two daughters, namely, Mitra Devi and Ishwari Devi. Sundari Devi sold 2 Kathas of Plot No. 773 to Raghubir Mistri by registered deed of sale dated 22.11.1958. According to the petitioner Mitra Devi sold her 8 Annas right in the suit property to the petitioner under registered deed of sale dated 10.4.1958 in the entire land and the dwelling house. The petitioner was tenant in part of the suit property since 1949 and after purchase of 1/2 share from Mitra Devi, he came in possession of the entire purchased land and dilapidated dwelling house. The suit was eventually decreed by the Munsif in terms of the judgment dated 20.7.1968 and preliminary decree was passed in respect of 1/3rd share of the petitioner in the suit property. The defendant petitioner then preferred Title Appear No. 136 of 1968 and by judgment and decree dated 21.7.1984 the Appellate Court allowed the appeal in part and decreed the plaintiffs suit for 1/3rd share in respect of Plot No. 773 only. The petitioner's further case is that thereafter on the application filed by the plaintiffs, a final decree was prepared, sealed and signed on 3.7.1993, but the same was not in consonance with the preliminary decree passed by the Appellate Court in T.A. No. 136 of 1968. The plaintiffs then put the final decree in execution being Execution Case No. 4 of 1994. It is stated that during the pendency of the suit, Sundari Devi, Widow of Bisheshwar Mietri and Ishwari Devi, died one after another and their shares devolved in the surviving daughter {Mitra Devi), being the sole heir. In view of the subsequent event, during the pendency of the suit, the petitioner filed a petition under Section 43 of the Transfer of Property Act (hereinafter to be referred to as the Act' for short), praying that in view of the death of Sundari Devi and Ishwari Devi, after the preliminary decree, the share of the petitioner in the suit property was augmented from 1/3 to 1/2 share and so the preliminary decree be amended. The said application was, however, rejected by the Court below, which was challenged by the petitioner by filing T.A. No. 24 of 1993. The said appeal was allowed by the learned Additional District Judge, Patna. holding that the petitioner is entitled to 8 Annas Share in the suit property. It is stated that the preliminary decree was prepared by the Court below during the pendency of T.A. No. 24 of 1993. The petitioner, therefore, filed several petitions before the executing Court praying that the final decree under execution is not sustainable as it has merged into the decree made and passed by the Appellate Court in T.A. No. 24 of 1993 and the decree of the original Court has become non est The Executing Court, however, directed the parties to file amended decree in view of the final order passed in appeal. The petitioner is said to have filed various petitions praying therein that the original final decree passed by the Munsif is not executable as the decree has merged into the decree of the Appellate Court, which alone is executable. The said prayer was opposed by the opposite parties by filing rejoinder. The Execution Munsif, however, after hearing the parties passed the impugned order dated 22.7.1996 holding that the original final decree was not at all effected by the judgment and decree passed by the appellate Court in T.A. No. 24 of 1993, and directed the plaintiffs decree holders to proceed with the Execution Case No. 4 of 1994. Hence, this Civil Revision application by the petitioner.

(3.) BEFORE appreciating the rival contentions made by the learned Counsel for the parties, it would be useful to first look into the various orders time to time passed by the Court below and the subsequent events occurred and brought on record by the parties.