Balgovind Raut vs Jagdish Raut and Others

Jha, J.—I shall dispose ot'' these four petitions by a common judgment as they arise out of a common order passed by the Court below.

The simple point for consideration is :

Whether the Court below could have recalled the order dated 10th Dec. 1980?

In the present case, auction sale took place on 2nd Dec. 1980. On the same day, the judgment-debtor filed an application with a prayer that he may be directed to pay the decretal amount by instalments. The prayer of the judgment-debtor (petitioner) was allowed by an order dated 10th Dec. 1980.

On 10th Mar. 1981, the decree-holders filed a petition to recall the order dated 10th Dec. 1980, on the ground that there were no decretal dues after the sales had taken place. By the impugned order, the Court below recalled the order dated 10th Dec. 1980.

It was contended on behalf of the petitioner that the Court below had no jurisdiction to recall the order. It was also contended that the impugned order dated 14th Aprl. 1981, was barred by the principle of res judicata.

In the present case, the Court below refused to confirm the sale by order dated 11th Feb. 1981, and also refused to recall the order dated 10th Dec. 1980. In the order dated 11th Feb. 1981, it was specifically stated that the order dated 10th Dec. 1980 was passed after hearing both the parties. It has been stated therein that the decree-holders did not file any rejoinder to the application filed by the judgment-debtor for fixing the instalments.

In my opinion, the Court below erred in recalling the order dated 10th Dec. 1980 as the application of the decree-holders for recalling the order is barred by the principle of res judicata. As the decree-holders did not file any revision petition either against the order dated 10th Dec. 1980 or against the order dated 11th Feb. 1981, the order passed in respect of the instalments had become final between the parties. Hence, the Court below by its order dated 14th Aprl. 1981 erred in law in exercising the jurisdiction vested in it by law. Apart from this, the order dated 14th April, 1981 has occasioned a failure of justice and, as such, it is fit to be set aside.

In this circumstance, I set aside the order dated 14th Aprl. 1981 and affirm the order dated 10th Dec. 1980. As such, the petitions are allowed and the orders passed in all these petitions are set aside. The parties shall bear their own costs. -

S.S. Sandhawalia, C. J.

I agree.