GOPAL DAS Vs. JAGESHWARI PRASAD NARAIN DEO

JUDGEMENT

(1.) This is an appeal from an order of the Subordinate Judge of Patna rejecting an application made by the appellants under Order 22, Rule 10, Civil P.C., It appears that in the year 1917 one Harihar Prasad Narain Deo had instituted a suit in the Court of the Subordinate Judge of Gaya against his elder brother Isri Prasad Narain Deo for the partition of the Dhanwar estate. Subsequently, the sons of Harihar Prasad Narain Deo were added as plaintiffs and the suit was transferred to the Court of the Subordinate Judge at Patna. On 22 August, 1925 the suit was dismissed by the Subordinate Judge, but on appeal it was partially decreed by the High Court. The High Court held that the plaintiffs were not entitled to claim partition of the Dhanwar estate which was impartible, but they were entitled to a preliminary decree in respect of moveables and a number of villages which had been acquired by one Ran Bahadur Singh, the last holder of the impartible estate, and had not been incorporated with it.

(2.) The plaintiffs not being satisfied with the decree of the High Court appealed to the Privy Council and their Lordships of the Privy Council by their judgment dated 29 July 1936 allowed the appeal in part and modified the decree of the High Court by including therein two villages named Telonari and Palanki among the properties to be partitioned. They further referred to the Court of the Subordinate Judge under Order 41, Rule 25, Civil P.C., the question whether any villages to be specified by the appellants from list A or B filed with the plaint were the self-acquired properties of Maharaja Ran Bahadur Narain, deceased and if so, whether any such self-acquired villages were incorporated by him with the estate.

(3.) Now, it appears that the appellants had a money decree against Harihar Prasad Narain Deo and in execution of that decree they attached the preliminary decree of the partition suit passed by the High Court on 26 February 1931. On 15 April 1937 they purchased the aforesaid preliminary decree and on 14th September 1937 they filed a petition in the partition proceedings then pending in the Court of the Subordinate Judge at Patna to the following effect: That the petitioners purchased the rights, title and interest of plaintiff 1 in auction sale in Execution Case No. 97 of 1936 in this Court on 15 April, 1937 as will appear from the sale certificate filed herewith and the sale was confirmed and now plaintiff 1 has no interest left in the suit. It is therefore prayed that your honour may be graciously pleased to strike off the name of plaintiff 1 and substitute the petitioners names in place thereof and pass such and further order or orders as your honour may deem fit and proper in the case.