Shri Kishan Sharma vs Manohar Lal and Others

M.K. Mudgal, J.—The appellant/plaintiff has filed the appeal u/s 96 of the CPC being aggrieved by the judgment and decree dated 9.3.06 passed by the Court of First Additional Judge to the Court of District Judge, Shivpuri in Civil Suit No. 57-A/05 dismissing the suit holding that the suit was not maintainable and appellant/plaintiff was advised to file execution proceeding in pursuant to the judgment and decree dated 19.9.96 rendered in earlier Civil Suit No. 11A/89. In this appeal appellant is referred as "plaintiff" and the respondent as "defendant." The admitted facts are as follows-

The plaintiff filed a Civil suit No. 11A/89 for declaration of title and 1/4th share in the disputed property against the defendant before the Court of First Additional District Judge Shivpuri wherefrom the suit was dismissed vide judgment and decree dated 11.12.92 against which first appeal was filed before the High Court Bench Gwalior as First Appeal No. 19/93 wherefrom having allowed the appeal the suit filed by the plaintiff was decreed and 1/4th share in the disputed property was declared as under:-

The appeal is accordingly allowed.

The judgment and decree passed by the Court is set aside. The suit for declaration of the plaintiff 1/4th share in the disputed property is decreed. In the circumstances of the case, the parties shall bear their own costs through-out.

After that the plaintiff again filed a civil suit for partition and possession with regard to 1/4th share of the same property. The aforesaid suit was registered as Civil Suit No. 57-A/2005. The trial Court vide impugned order dated 9.3.06, dismissed the civil suit on the ground that the High Court has already allowed the appeal of the plaintiff with regard to his title to 1/4th share and partition and delivery of possession in the disputed property and the plaintiff was advised to file the execution proceedings. Thereafter the petitioner filed execution proceedings before the trial Court with regard to execution of judgment and decree passed in Civil Suit No. 11-A/89, in pursuance to the judgment and decree passed by the High Court in F.A. No. 19/1993. The executing Court dismissed the execution proceedings vide order dated 13.09.07 after holding that there is no decree for partition and delivery of possession in favour of the plaintiff.

The plaintiff filed Writ Petition No. 4893/07 against both the orders dated 9.3.06 whereby a Civil Suit No. 57-A/05 was dismissed and order dated 13.9.07 whereby execution proceeding was dismissed. Vide order dated 9.9.08 passed in W.P. No. 4893/07, the petition is disposed of with the following directions:

i) that the petitioner can file appropriate proceedings against the order dated 9.3.2006 passed in Civil Suit No. 57-A/2005.

ii) that Court may consider the application for condonation of delay in accordance with law, if any remedy be availed by the petitioner.

iii) however, this Court cannot quash the order Annexure-P/4 dated 9.3.06, dismissing the plaint of the petitioner under Article 227 of the Constitution of India because a decree must has been grown in pursuance to the order dated 9.3.2006 with regard to dismissing the plaint.

After that the appellant/plaintiff has filed this appeal on 13.10.08. The delay in filing the appeal is condoned vide order dated 1.12.08.

Appellant''s counsel submits that the impugned order dated 9.3.06 issuing direction to the plaintiff for filing the execution proceedings in consequence of judgment and decree dated 19.9.96 passed by the High Court being erroneous and contrary to law deserves to be set aside.

Having considered the submission of the learned counsel the impugned order being not based on correct reasonings deserves to be set aside because this Court has held in order dated 9.9.08 passed in W.P. No. 4893/07 that the executing Court has dismissed the execution proceedings. In the opinion of the Court, these execution proceedings have rightly been dismissed by the executing Court because there is no decree in favour of the petitioner for delivery of possession and partition in F.A. No. 19/1993.

Looking to the findings given by this Court vide order dated 9.9.08, it becomes clear that no decree in favour of the plaintiff for partition and delivery of possession in F.A. No. 19/1993 was passed vide judgment dated 19.9.96. Hence, it is concluded that the trial Court has committed error by impugned judgment/order dismissing the suit and issuing the direction to the plaintiff for filing the execution. Therefore, the impugned order dated 9.3.06 passed by the learned trial Court in Civil Suit No. 57-A/05 is hereby set aside. Remanding the case to the lower Court, it is directed to decide the case afresh as per provision of law. The case being old be decided on priority basis within a year. No order as to cost.

Office is directed to send the record of the lower Court along with a copy of the order immediately for necessary information and compliance.