Binod Kumar vs Sudama Pandey and Others

Sanjay Misra, J.—Heard Sri Abhishek Rai holding brief of Sri Chandan Sharma, learned Counsel for the Defendant-Appellant and Sri P.K. Jain, learned senior counsel assisted by Sri Virendra Chaubey who has appeared on behalf of the Plaintiff-Respondents.

This is a First Appeal From Order under Order XLIII Rule 1(t) of the CPC against the order dated 29.04.2009 passed in Misc. Case No. 149 of 2006 (Binod Kumar Chaubey v. Sudama Chaubey and Ors.) by II Additional District Judge, Ballia whereby the application filed by the Defendant-Appellant under Order XLI Rule 21 of the CPC for re-hearing of the appeal has been rejected.

Learned Counsel for the Defendant-Appellant has submitted that a sale deed dated 09.05.1988 was executed by the Plaintiff-Respondent in favour of the Appellant namely Binod Kumar and the Respondents namely Markandey, Manoj Kumar and Hare Ram (predecessor of Respondents No. 2/1 to 2/4) and possession was handed over to them. He submits that the Plaintiff-Respondent filed a suit for cancellation of sale deed in the year 1996, but subsequently in 1997 he filed an application for withdrawal of the suit which was ultimately allowed by the order dated 16.8.2000 and the suit was dismissed as withdrawn. According to the Defendant-Appellant the Plaintiff-Respondent filed a restoration application on 19.07.2003 for restoring the suit which was allowed and the suit proceeded ex-parte which was rejected against the Plaintiff-Respondent. He states that the Plaintiff-Respondent filed Civil Appeal No. 51 of 2005 which was allowed and the suit was decreed and the sale deed dated 9.5.1988 was cancelled. According to learned Counsel for the Defendant-Appellant no notice of restoration of the suit was ever served on the Defendant-Appellant and, therefore, his application for re-hearing under Order XLI Rule 21 of the CPC was maintainable and ought not to have been rejected by the impugned order.

Sri P.K. Jain, learned senior counsel has submitted that the judgment and decree in Civil Appeal No. 51 of 2005 whereby the sale deed was cancelled was taken up in Appeal No. 889 of 2006 by Markandey one of the purchasers along with the Appellant which was dismissed on 11.10.2006 whereagainst he preferred SLP in Supreme Court which was also dismissed on 19.03.2007.

According to Sri Jain when one of the purchasers out of four had assailed the judgment canceling the sale deed and it had attained finality up to Supreme Court the other person who was the joint purchaser now cannot re-agitate the matter or ask for re-hearing of the Civil Appeal No. 51 of 2005 which judgment has been confirmed up to Supreme Court.

Having considered the submissions of learned Counsel for the parties and perused the record, it is quite apparent that Binod Kumar Defendant-Appellant , Hare Ram (father of Respondents No. 2/1 to 2/4), Markandey Respondent No. 3 and Manoj Kumar, Respondent No. 4 were joint purchasers of the property in question by virtue of sale deed dated 09.05.1988. The Plaintiff filed the suit for cancellation thereof.

He withdrew the suit subsequently and again filed a Restoration Application and the suit was dismissed ex-parte against the Plaintiff-Respondent. In Civil Appeal No. 51 of 2005 the appellate court has allowed the appeal of the Plaintiff-Respondent and cancelled the sale deed dated 09.05.1988. Such order of cancellation of the sale deed by the appellate court in Civil Appeal No. 51 of 2005 has attained finality when Second Appeal of Markandey was dismissed by the High Court on 11.10.2006 and the SLP thereagainst was dismissed by the Supreme Court on 19.07.2007. Under such circumstances there is no occasion for the court now to entertain an application on behalf of another co-purchaser of Markandey for the purpose of re-hearing of the appeal.

Moreover, under the impugned order the court below has also recorded a finding that the Defendant-Appellant had knowledge about the proceedings and he being the co-purchaser with the contesting Respondent, it cannot be believed that he had no knowledge about the proceedings taken up by his co-purchaser up to the Supreme Court. The view expressed by the trial court in the impugned order does not suffer from any error in law when it has rejected the application under Order XLI Rule 21 of the Code of Civil Procedure.

The appeal has no merit and is accordingly dismissed.

There shall be no order as to costs.