SAVITRI DEVI Vs. JAITUNNISHA

JUDGEMENT

(1.) Mr. P. K. Prasad, learned senior counsel appearing for the petitioners challenged the impugned order on the various grounds whereas Mr. Amar Kumar Sinha, learned counsel for the respondent supported it.

(2.) It appears that Title Suit No. 220 of 1982 was filed by the respondent for specific performance of the contract against the petitioners. Suit was decreed. The respondent filed execution case being Execution Case No. 70 of 1984 in which the objection in question was filed by the petitioner which was registered as Misc. Case No. 77 of 1985. The petitioners also filed appeal in this court against the said judgment and decree, which was registered as First Appeal No. 42 of 1984(R). The appeal was allowed against which an appeal being L.P.A. No. 42 of 1999(R) was filed by the respondent. By the judgment dated 07.8.1987, the L.P.A. was allowed and the judgment and decree passed by the trial court was restored and affirmed after hearing the parties fully. In the objection petition in question, filed on behalf of the petitioners in 1985, it was said that the partition suit was pending. But in the said judgment passed in the L.P.A., it was noted that - "There is no dispute that there was a partition between the defendant and his co-sharers and by virtue of the decree passed in the partition suit. The defendant-respondent was allotted 1/5th share in the suit proportion."

(3.) It was further observed as follows: "Having regard to the admitted facts that in the partition the defendant-respondent has been allotted 1/5th share and there was concession on the part of the plaintiff to get a decree for specific performance on payment of some consideration, I am of the view that the learned trial court was fully justified in granting the decree for specific performance, in respect of 1/5th share of the defendant-respondent in the suit property."