RAHIM MIAN Vs. BIBI JAIBUNISHA

JUDGEMENT

(1.) This writ application has been filed for quashing the order dated 22.09.2012 passed by Sub Judge-II, Giridih in Partition Suit No. 15 of 1988, whereby and whereunder he rejected the objection raised by the petitioners with regard to legality of preliminary decree at the stage of preparation of final decree.

(2.) It appears that the plaintiffs-respondents had filed aforesaid suit claiming share in the property, details of which given in the schedule of the plaint. It further appears that the petitioners, who are defendants in the aforesaid suit, had filed their written statement, raising objection that the ancestor of plaintiffsrespondents had already soled 1/4th interest in the joint family property and therefore the plaintiffs-respondents are not entitled to get any share in the joint family property. It then appears that after filing of written statement, no pairvi made by the defendants/petitioners and they did not cross examine the plaintiffs and his witness nor they adduced any evidence in support of their case as stated in the written statement. It appears that the court below decreed the suit vide judgment dated 30.09.1993 and prepared a preliminary decree.

(3.) It is relevant to mention that defendants-petitioners had not filed any appeal against the preliminary decree. Thus, the preliminary decree passed by the learned court below has become final. It then appears that an application filed by the plaintiffsrespondents on 25.08.2010 for preparation of final decree. It appears that during the proceeding for preparation of final decree, again defendants-petitioners had not appeared, hence, the learned Sub Judge passed an ex-parte final decree on 09.05.2011. Thereafter defendants-petitioners filed an application on 22.02.2011 under Order IX Rule 13 of the CPC, but the same has been rejected by the learned Sub Judge on 22.12.2011. Thereafter defendants-petitioners filed a Miscellaneous Appeal in the court of Principal District Judge, Giridih vide Miscellaneous Appeal No. 02 of 2012 which was allowed vide judgment dated 30.04.2012 and Principal District Judge, Giridih directed the court below to give adequate opportunity to the defendants-appellants and decide the matter afresh and prepare final decree in accordance with law.