GOLAK BIHARI MANDAL Vs. KAMLA DEVI

JUDGEMENT

(1.) The petitioners, by way of filing the present writ petition under Article 227 of the Constitution of India, have prayed for quashing and setting aside order dated 20.8.2010 (Annexure-2) passed by the District Judge, Deoghar in Misc. Appeal No. 5/2006 and order dated 10.7.2006 (Annexure-1) passed by Sub-ordinate Judge-II in Misc. Case No. 3/2006, whereby, the learned Sub-Ordinate Judge has dismissed the petition filed under Order XXI, Rules 97 and 99 read with Section 151 of the Code of Civil Procedure. Heard the learned counsel for the parties and perused the impugned orders as well as other materials placed on record.

(2.) Learned senior counsel appearing for the petitioners submitted that one Title Suit bearing No. 49/97 was filed by the respondents before the Court below and the said suit was disposed of in view of the settlement/compromise arrived at amongst the parties. It is also submitted that one Misc. Case No. 01/2004 was filed by some of the original defendants under Order IX Rule 13 of the CPC with a prayer to set aside the compromise decree and in the said case the petitioners moved an application for impleadment as parties under Order I, Rule 10 of CPC but the said application was dismissed as not pressed. According to the learned counsel for the petitioners, the petitioners were never given opportunity to put forward their cases against the fraudulent compromise decree obtained in Title Suit No. 49/97 though they were legally entitled to raise objection and ventilate their grievance against the fraudulent compromise decree obtained in Title Suit No. 49/1997. It is further submitted that being aggrieved by and dissatisfied with the said order, the petitioners preferred First Appeal No. 10/ 05 challenging the final decree and the said first appeal was ordered to be dismissed on technical ground. The learned senior counsel for the petitioners further submitted that thereafter, a Second Appeal was preferred by the present petitioners but the same was withdrawn as not pressed as the petitioners wanted to avail the alternative remedies under Order XXI Rules 97 and 99 r/w Rule 100 of CPC. Learned senior counsel by referring the provision as contained in Order XXI Rule 97 and 99 r/w Rule 101 of CPC submitted that execution can be obstructed by any person by submitting an application under the above position and the said application is required to be dealt with and decided by the executing court as per provision contained in Order XXI Rule 101. It is submitted that in view of the facts and circumstances of the case, the petitioners filed an application under Order XXI Rule 97 of the Code of Civil Procedure, which is legally maintainable. However, the court below in execution proceeding, rejected the said application without proper appreciation and consideration of the relevant facts and materials placed on record. The learned senior counsel for the petitioners by referring the various provision relating to an appeal under Order XLIII(1-A) of the Code of the Civil Procedure as also the provision as contained in Section 96(3) of the Code of Civil Procedure submitted that no appeal shall lie from a decree passed by the court with consent of parties. The learned senior counsel for the petitioners in support of his contention has referred to and relied upon the following judgments;-

(3.) As against this, the learned counsel for the respondents by referring counter affidavit submitted that the petitioners have suppressed the material facts by not mentioning the Title Suit 81/2004 filed by the petitioners as also about the Title Partition Suit No. 138 of 2010. Learned counsel for the respondents by referring the impugned order passed by the court below pointed out that the court below has discussed in detail about the various proceedings filed by the present petitioners including the fact about filing of Second Appeal, which was dismissed as withdrawn. It is also pointed out that the Appellate Court has also discussed in paragraph 19 of its order about the various proceedings initiated by the present petitioners and the outcome of the said proceedings and thereafter, rejected the said appeal. It is further submitted that since the petitioners have suppressed the material facts before this Court, the petitioners are not entitled to get any relief(s) as prayed for as the petitioners have not approached this Court with clean hand. Learned counsel for the respondents in support of his contention has referred to and relied upon the judgment reported in 2013 (I) JBCJ 314 and submitted that the title suit filed by the present petitioners is still pending before the competent court and this fact is not pointed out before this Court and the ratio laid down in the said judgment provides that two parallel proceedings for same cause are not permissible and is against the public policy and this judgment is relevant for the purpose of present case.