KAKRAUL CO-OPERATIVE SOCIETY Vs. DURGANAND JHA

JUDGEMENT

(1.) In execution of a decree on an award under the Co-operative Societies Act, the petitioner obtained delivery of possession over 16 bighas and odd as the land of the judgment-debtor Jaikishore Jha.

(2.) The opposite party, a brother and a nephew by another brother of the judgment-debtor, applied under Order 21, Rule 100 on the ground that the property was ancestral, that they had a two-thirds interest in it, that on the death of Thithar Jha, father of Jaikishore Jha and others, there had been a disruption of the family with a division of the lands by mets and bounds, and that the debt on which the petitioner had obtained his decree, had not been incurred by Jaikishore for purposes binding on the family. They claimed certain specific plots as their separate property since the division. The execution Court held against them that the family had not been divided, but found in their favour that there was no necessity for the loan. The story of partition and division of lands by metes and bounds having been found to be a "myth," the application was dismissed, but the learned Subordinate Judge observed that: the applicants may renew their claim by a separate application to be put into joint possession over a two-thirds share in the land sold and the same will be allowed.

(3.) This was on 25 August 1931. The opposite party accordingly applied on 3rd September 1931 under Order 47, Rule 1 stating that owing to an oversight an alternative prayer for joint possession could not be made originally in the application, "without which, proper relief could not be granted to these petitioners," and praying that "in the interest of justice" the order of dismissal be reviewed and vacated, and "joint possession over a two-thirds share" in the property be granted to them.