Rajesh Dewangan vs Pramod Kumar Parakh And Ors

Goutam Bhaduri, J

The instant petition is against the order dated 25.01.2018, whereby an application preferred by the petitioner under Order 1 Rule 10 CPC was

dismissed.

Learned counsel for the petitioner would submit that one suit was initially filed in the year 1981 by Budhiyarin Bai & Raghunath against Nanku

Dewangan & Madhusudan Dewangan, the said suit was dismissed in the year 1983. Thereafter, the first appeal was preferred and the same was

dismissed in the year 1994. The second appeal was preferred before this Court and the same was dismissed for want of prosecution. One of the

defendant in such case in the year 1992 had entered into an agreement with one Pramod Kumar Parakh for sell of the part of land. Subsequently, a

suit was filed by Pramod Kumar Parakh and the suit was for specific performance and the same was decreed in the year 1999. The First appeal was

preferred by defendant Madhusudan Dewangan, which was dismissed and also was affirmed by the Supreme Court. He would further submit that the

petitioner is the son of the original plaintiff Raghunath Dewangan and application for restoration of second appeal is pending adjudication before this

Court, however, in the meanwhile, the execution proceeding has been preferred by Pramod Kumar Parakh and if the execution of the specific

performance is effected then in such case the right of the petitioner shall be seriously prejudiced, therefore, an application under Order 1 Rule 10 CPC

by son of Raghunath Dewangan, the original plaintiff, was preferred and the same is dismissed and the order will affect the right of the petitioner,

therefore, execution proceedings may be stayed and he may be allowed to participate in the execution.

I have perused the order dated 25.01.2018. The second appeal which originated from the original suit filed in the year 1981, was dismissed. The

order and the document would show that the second appeal which is pending restoration and originated from the original suit filed in the year 1981,

however, in the meanwhile, the specific performance of decree which is being sought for in the execution, the petitioner wanted to become a party. It

is a settled preposition that the executing Court cannot go beyond the decree. Admittedly, the petitioner was not before the Court of specific

performance and the same is eventually affirmed by the different higher Courts. Consequently, the original decree dated 04.05.1999 which has been

affirmed by this Court and thereafter by the Supreme Court again allowing the application of the petitioner at this stage in the execution would amount

to retrial of the said case.

In the result, I do not find any reason to interfere with the impugned order. Accordingly, the petition is dismissed. In case of restoration of second

appeal, the petitioner shall have his remedy as available to him under the law.