Sidheshwar Rai vs Sambhu Rai

I.A No. 4260 of 2015Â

This application has been filed seeking substitution of respondent no. 19 who died on 25.12.2001 leaving behind the following legal heirs and

representative:

i. Radhika Kunwar, wife of late Ram Keshwar Pathak, daughter of late Ram Lakhan Mishra resident of village Kot, P.O. and P.S.- Lesliganj,

District- Palamau.

 For the reasons stated in the application, I.A.No. 4260 of 2015 stands allowed.Â

 Let necessary correction be done during course of the day.Â

I.A. No. 4261 of 2015Â

 This application has been filed for deleting the name of respondent nos. 4 and 24 from array of the parties.  For the reasons stated in this

application, I.A No. 4261 of 2015 stands allowed.Â

 Let necessary correction be done in the memo of parties during course of the day.

 W.P.(C) No. 2757 of 2010

 The petitioner, defendant no. 2 in Partition Suit  No. 11 of 1990, is aggrieved of order dated 17.04.2010 passed in Execution Case No. 01 of 2009

by which the execution case has been closed. Â

Partition Suit No. 11 of 1990 was instituted for a  preliminary decree of partition. In the partition suit by an order dated 06.03.2006, on the

application of the subsequent purchasers, a direction was issued to implead them in place of the plaintiff and the defendant nos. 1 and 2, however,

before this order was complied the Advocate Commissioner proceeded with preparation of the final decree. The suit property originally belonged to

Dewal Rai and Issar Rai ; the said Issar Rai was represented through his widow namely, Dhana Kuer. When the aforesaid omission was brought to

notice of the court by the defendant nos. 11 to 11-F and Ram Rekha Singh and others who are the subsequent purchasers, by an order dated

05.09.2009 passed in Partition Suit No. 11 of 1990, the court stayed further proceeding in the final decree. However, ignoring the aforesaid orders a

final decree was prepared which was put to execution in which the defendant nos. 11 to 11-E as well as the subsequent purchasers filed an

application seeking a declaration that the final decree has already been set-aside and therefore Execution Case No. 01 of 2009 stands closed.Â

Stand taken by the petitioner is that once a final decree was prepared, the executing court has no jurisdiction to declare that the final decree was

illegal and close the execution case on that ground. Â

As noticed above, by an order dated 05.09.2009 the trial court has stayed preparation of final decree pursuant to judgment in Partition Suti No. 11

of 1990. The executing court has passed the following order: “rRdky vfare fMØh cuku sdh dkjokbZ LFkfxr dh tkrh gSAâ€Â However, it

appears that the Advocate Commissioner proceeded to prepare the final decree without allocating share to the subsequent purchasers from share of

the plaintiff and the defendant nos. 1 and 2. The executing court has in its order dated 05.09.2009 observed that the order for preparation of final

decree was a mistake particularly in view of orders dated 06.03.2006 and 09.07.2007. In my opinion, as long as order dated 05.09.2009 remains

unchallenged by the petitioner, no objection to the impugned order dated 17.04.2010 can be taken. This order is a consequential order to the order

dated 05.09.2009. Final decree prepared in breach of order dated 05.09.2009 and without allocating share to the subsequent purchasers who have

been impleaded by order dated 06.03.2006 was illegal. 5. In the above facts, finding no infirmity in the impugned order dated 17.04.2010 the writ

petition is dismissed.Â