Hassan Imam and Others vs Abdul Hakim and Others

B.P. Jha, J.—This civil revision petition has been filed by the intervenor defendants-petitioners against an order dated 16-2-1981 passed by the Court below.

By the impugned order, the court below refused to take cognizance of a compromise decree passed in Title suit No. 29 of 1961.

In the present case a preliminary decree was passed in Title suit No. 135/24 of 1953/1956. Bhondu Mian had three sons, namely, Abdul Ghafoor, Yaqub and Abdus Shakoor. The partition suit was filed for partition between the heirs of Bhondu Mian. The petitioners are the intervenor defendants. It is stated by the learned Counsel for the petitioners that the petitioners were added parties to the aforesaid partition suit after passing of the preliminary decree. It is also stated by learned Counsel for the both sides that the preliminary decree was passed in the suit in 1956 and the proceeding for final decree was started after a lapse of more than twenty years.

learned Counsel for the petitioners contends that in a case of this nature, the court will not prepare the final decree on the basis of the preliminary decree passed in the suit, but will take cognizance of the adjustments made between the parties. Title suit No. 29 of 1961 was filed by Mohammad Siddique the purchaser from the heirs of Abdul Shakoor, under Order 21, Rule 63 of the Code of Civil Procedure. The plaintiffs and the contesting defendants were also parties to the said suit, including the intervenor defendants, who are heirs of the said Mohammad Siddique. A decree was passed in the aforesaid Title suit No. 29 of 1961 on 28-5-1966 in terms of compromise. Mohammad Siddique was the purchaser of the share of Abdul Shakoor from his wife and two sons. On the basis of the compromise arrived at in Title suit No. 29 of 1961, the intervenor defendants got a compact block of plot Nos. 482, 483 and 484 (with areas mentioned in the compromise petition). These plots are still the subject matter of the preliminary decree. It is, therefore, prayed on behalf of the petitioners that the compact block of plot Nos. 482, 483 and 484, which were allotted to them by the compromise decree in Title suit No. 29 of 1961 should be allotted to them in the present final decree.

This prayer was refused by the court below.

In my opinion the Court below erred in law in refusing the prayer of the petitioners. It has been consistently held that if a preliminary decree is executed after a lapse of several years, then the executing Court will have to take cognizance of the adjustments made between the parties. On a perusal of the impugned order, it is clear that on the basis of the compromise decree passed in Title suit No. 29 of 1961, these petitioners got a compact block of plot Nos. 482, 483 and 484. If it is so, then while preparing the final decree, the Court must take cognizance of these facts. The properties involved in Title suit No. 29 of 1961 and Title suit No. 105/24 of 1953/1956 are common. The parties are also common. If the court does not take cognizance of the compromise decree in Title suit No. 29 of 1961, then there will be two inconsistent decrees in respect of the same subject matter of properties and between the same parties. It is not the scheme of the CPC that there should be two inconsistent decrees (the decisions in Tara Pada Ray Vs. Shyama Pada Ray and Others, and Ramautar Singh and Ors. v. Ram Binod Sharma and Ors. 1968 B.L.J.R. 841. If it is not done, the dispute will never be resolved between the parties. It is for this reason that the court will have to take cognizance of the compromise decree in Title suit No. 29 of 1961. I direct that the final decree in the aforesaid Title suit No. 105/24 of 1953/1956 be prepared after taking cognizance of the compromise decree in Title suit No 29 of 1961. In this view of the matter, the compact block of plot Nos. 482, 483 and 484 (with areas mentioned in the compromise decree) be allotted to the petitioners and the final decree in the present suit will be prepared accordingly. The rest of the allotments will be made on the basis of the preliminary decree.

In the result, the civil revision petition is allowed and the order dated 16-2-1961 passed by the Court below is set aside. There will be no order as to costs.