SAVITRI DEVI Vs. ARUN PRAKASH PANDEY

JUDGEMENT

(1.) This Civil revision application is directed against the order dated 30-7-1997 passed by the Subordinate Judge VI, Motihari, in F.D.-17 of 1976, by which he has allowed the petition of the Intervenor-Opposite party purported to be under Order XXVI, Rules 13 and 14(2) as well as under Order XX, Rule 18 of the Code of Civil Procedure (for short 'CPC) holding that the preliminary decree dated 19-7-1978 passed in Partition Suit No. 17 of 1976 in favour of the plaintiff is collusive and fraudulent and the final decree proceeding initiated on the basis of the said preliminary decree is collusive and nullity.

(2.) The facts of the case lie in a narrow compass.

(3.) The plaintiff-petitioner filed Partition Suit No. 17 of 1976 for a decree of partition in respect of her 2 annas share in the said property. The said suit was contested by the defendant and a contested preliminary decree was passed on 19-7-1978 declaring 2 annas share of the plaintiff in the suit property. By the said decree the share of defendant Nos. 1, 7 and 8 have also been declared to the extent of 10 annas, 2 annas and 2 annas respectively. The Court below on the basis of the preliminary decree started final decree proceeding and a pleader commissioner was appointed to carve out Takhta of the shares of the respective parties. The pleader commissioner submitted his report dated 30-5-1992 and the same was pending for confirmation before the Court below. At this stage, a petition dated 6-5-1995 was filed on behalf of the Intervenor-Opposite party under Order XXVI, Rules 13 and 14(2) of the CPC read with Order XX, Rule 18, CPC for declaration that the final decree proceeding is fraudulent, null and void. The Intervenor-Opposite party in his petition stated, inter alia, that he is the auction- purchaser of the suit property which was attached in Execution Case No. 65 of 1987 arising out of Mortgage Suit No. 88/9 of 1977/1980 filed by the State Bank of India against defendant-Opposite party No. 1 and his wife. He further stated that the petitioner and her other two sisters, namely, Opposite party Nos. 7 and 8 filed Misc. Case No. 11 of 1988 under S. 47 of the CPC for setting aside the auction sale. The said petition was dismissed on 27-8-1988 against which the petitioner filed Civil Revision No. 1700 of 1990 before this Court. The petitioner filed rejoinder opposing the prayer of the Intervenor and disclosing the fact that this Intervenor has already filed Title Suit No. 4 of 1994 for the same relief. It was further stated in the rejoinder that the Intervenor has no locus standi to file application in the final decree proceeding because the auction-purchase, sale certificate and delivery of possession in favour of the Intervenor had already been set aside by this Court and confirmed by the Hon'ble Supreme Court. However, the learned Court below after hearing the parties allowed the Intervenor' petition holding that the preliminary decree passed in Partition Suit No. 17 of 1976 is collusive and fraudulent and the final decree proceeding on its basis is also collusive and nullity. Accordingly, the learned Court below by the impugned order dropped the final decree proceeding. Hence this revision application.