PRABHAT KUMAR SINHA Vs. NIRMALA SINHA

JUDGEMENT

(1.) :- This Civil Revision under Section 115 of the Code of Civil Procedure (for short C.P.C.) is directed against the order dated 2-5-1988 passed by learned Subordinate Judge-VII, Patna, the Executing Court, in Misc. Case No. 19 of 1981 rejecting the petitioner' application purported to have been made under Order XXI, Rule 97, C.P.C. in Execution Case No. 2 of 1973.

(2.) On 25-5-1988 a learned single Judge of this Court while admitting the Civil Revision for hearing was of the opinion that the decision of the learned single Judge in Kumar Krishna Nand v. Babu Lal Sah, 1987 Bihar Law Judgment 306, requires reconsideration and therefore directed that the Civil Revision be heard by a Division Bench. It was further directed that during the pendency of the Civil Revision further proceedings in Execution Case No. 2 of 1973 pending in the Court of Subordinate Judge-VII, Patna shall remain stayed and liberty was granted to the Opposite Party to apply for vacation/modification of the stay order after putting in appearance.

(3.) According to the petitioner one Aditya Narain Lal, since deceased, had one son Rabindra Narain Lal and four daughters i.e. Champa Devi, Nirmala Devi, Opposite Party No. 1, Kanti Devi and Dyamanti Devi, Opposite Party No. 2, Rabindra Narain Lal is the father of the petitioner Prabhat Kumar Sinha who has three more brothers i.e. Dilip Kumar Sinha, Prakash Kumar Sinha and Sailendra Kumar Sinha. On or about 23-2-1936 Aditya Narain Lal acquired 5 katha 2 dhoor of land at mohalla Kadam Kuan and constructed three rooms which are the subject-matter of the present case. On 15-4-1938 Aditya Narain Lal took a loan of Rs. 6,000/- from Pioneer Housing Society on furnishing security of the land above mentioned and further took a loan of Rs. 4,000/- from Ramnandan Prasad, Advocate on 3-4-1944 and on 9-9-1945 Aditya Narain Lal mortgaged the house in favour of Sri Ramnandan Prasad, Advocate and further obtained a loan of Rs. 9,000/-. According to the petitioner it appears that on 21-9-1995 Aditya Narain Lal executed a deed of mortgage with conditional sale in favour of Opposite Party Nos. 1 and 2 for Rs. 25,000/- at the rate of 41/2 per cent. for the period ending on 20-9-1992 in which Rabindra Narain Lal, father of the petitioner, was one of the witnesses. Earlier on 6-6-1947 Aditya Narain Lal took loan from Mahabir Singh and Ramchandra Prasad which according to the petitioner were paid on 24-9-1955. Aditya Narain Lal died on 25-9-1959. Notice on behalf of Opposite Party Nos. 1 and 2 was served on Rabindra Narain Lal on or about 4-1-1964 and the final demand was made by the said Opposite Party from Rabindra Narain Lal on 1-9-1964 and on his failure Title Mortgage Suit No. 97/10 of 1964-69 was filed against Rabindra Narain Lal who in his written statement admitted that it was self acquired property of Aditya Narain Lal and further admitted the dues of Ram Nandan Prasad, Mahabir Singh and Ramchandra Prasad but on 23-1-1970 a compromise petition was filed by Rabindra Narain Lal who took the liabilities to pay consolidated sum of Rs. 36,000/- to the Plaintiffs (Opposite Party Nos. 1 and 2) in full satisfaction of their claims and eventually a sum of Rs. 13,000/- was paid by a Bank draft dated 22-1-1970 and for the rest amount it was agreed that the same would be paid within 18 months in three equal instalments of Rs. 7667/- but Sri Rabindra Narain Lal failed to pay the amount in terms of compromise as a consequence of which a preliminary decree was drawn on 15-7-1971 and on 21-9-1972 a final decree was passed. Rabindra Narain Lal filed C.R. No. 413 of 1973 in this Court and three weeks' time was granted to convert Civil Revision into a First Appeal. This having not been complied with the Civil Revision No. 413 of 1973 was dismissed on 6-12-1973. Eventually the Restoration Application registered as M.J.C. No. 119 of 1974 was admitted and stay order was granted subject to the condition that Rabindra Narain Lal deposits Rs. 23,416/- within a month from the date of the order. On 17-11-1975 the aforesaid M.J.C. No. 119 of 1973 was dismissed. In the meanwhile objection under Section 47, C.P.C. was preferred by Rabindra Narain Lal on or about 13-7-1974 in Execution Case No. 2 of 1973 which were also dismissed by the order dated 29-6-1975/30-6-1975. Thereupon Rabindra Narain Lal filed Misc. Appeal No. 171 of 1976 which too was dismissed. Leave to appeal to Supreme Court preferred in this Court by Rabindra Narain Lal was also dismissed by order dated 29-8-1977. Thereafter Title Suit No. 35 of 1979 was filed by Dilip Kumar Sinha against Opposite Party Nos. 1 and 2 in which the petitioner and his father Rabindra Narain Lal were arrayed as Defendants 3 and 4 claiming a declaration that the decree passed in Title Suit No. 97/10 of 1964-67 and the execution proceedings are not binding on the plaintiffs of that suit as also on the petitioner-defendant No. 3.