RAMADHAR SINGH Vs. SHEO PRASAD SINGH

JUDGEMENT

(1.) THIS civil revision application, at the instance of the plaintiff -decree holder petitioner is directed against the order dated 4.3.97 passed by Subordinate Judge -IV, Danapur in execution case no. 2/96 whereby and where under the prayer of the petitioners decree -holders for execution of the decree has been rejected except for the payment of cost awarded under the decree.

(2.) BEFORE appreciating the case of the parties, it is necessary to discuss the brief facts of the case. The plaintiff petitioners instituted title suit no. 858/89/ in the court of Subordinate Judge, Danapur seeking a relief that it ''be declared that there had been an amicable partition of the properties in suit between the plaintiffs and the defendants as per memorandum of partition dated 25.9.89 in which schedule II properties of the plaint were allotted to the defendants and the said partition is final and binding upon the parties. Alternatively, it is prayed that in case the plaintiffs are not found entitled to the aforesaid relief then a decree for partition of Schedule II and III properties be passed and a separate Takhta with regard to 1/2 share of the plaintiffs be carved out and they be put in exclusive possession of the same through the process of the court.

(3.) IT appears that the petitioners decree holders thereafter filed a petition for execution of the decree and prayed that since the petitioners have fully complied with the judgment and decree and deposited the loan amount against truck no. BEA 7326 and also deposited Rs. 5,000/ - per month in the court, an order may be passed in favour of the decree holder for withdrawal of the said amount so deposited in the court. Further prayer was made for a direction to the District Transport Officer, Patna for transferring the ownership of the vehicle in favour of the decree holder. The judgment debtor opposite party filed objection stating inter alia that the execution case is not maintainable inasmuch as the decree sought to be executed is declaratory in nature. It is further stated that the suit was partly decreed and it was held that defendant Anil Kumar Singh is the rightful owner of the truck and accordingly he is entitled to receive the amount deposited by the petitioner as receiver during the pendency of the suit. The learned court below after hearing both the parties and after considering the judgment and the orders time to time passed by the court below and also by this court held that the decree does not speak about the transfer of ownership of the vehicle and it is not proper to release the amount in favour of the decree holder. The court below accordingly rejected the petition.