Prem Kumar Vs Bhagaban Ram

The Petitioners in this CMP seek to assail the order dated 7^th August, 2023 (Annexure-26) passed in Civil Revision No.2 of 2023, whereby learned 1^st Additional District Judge, Rourkela dismissed the revision and confirmed the order dated 28^th June, 2022 (Annexure-19) passed by learned Civil Judge (Senior Division), Rourkela in C.S. No. 63 of 2006 partly allowing an application under Order XXIII Rule 3 C.P.C.

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Mr. Maharana, learned counsel submits that the Plaintiffs are Petitioners in this CMP. The Plaintiff No.2 is the wife of Plaintiff No.1. The Defendant No.1 is the father of Plaintiff No.1 and Defendant No.2 is the sister of Plaintiff No.1. The suit for

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partition was filed in respect of Schedule ‘A’ to ‘E’ property. Schedule ‘A’ property is a residential house at Rourkela. During pendency of the suit, an application under Order XXIII Rule 3 C.P.C. was filed by the Plaintiffs and Defendant Nos.1 and 2. Although learned trial Court allowed the application vide order under Annexure-19 in respect of Schedule ‘B’ to ‘E’ property,

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but rejected the prayer in respect of Schedule ‘A’ property. Hence, this CMP has been filed.

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Short narration of the background of the case which gives rise to filing of the CMP is that Schedule ‘A’ property stood recorded in the name of Defendant No.1. A dissension arose between the Plaintiff No.1 and Defendant No.1, as the latter intended to alienate Schedule ‘A’ property. Accordingly, C.S. No. 63 of 2006 has been filed for partition of Schedule ‘A’ to ‘E’ property and to declare the Schedule ‘A’ property to be a joint family property. Along with the suit, the Plaintiffs also filed an application under Order XXXIX Rules 1 and 2 C.P.C., which was dismissed and carried to this Court in W.P.(C) No.4197 of 2007, wherein this Court vide order dated 26^th April, 2007 in Misc. Case No.4135 of 2007 passed an interim order to the effect that the suit properties shall not be alienated without leave of this Court. During pendency of the writ petition, an application was filed by the Defendant No.1 to take out the Schedule ‘A’ property from the interim order as the Defendant No.1 wanted to alienate the property to meet with the expenses of his daughter’s marriage, namely, Defendant No.2. The said application was allowed. During pendency of the writ petition, the suit was dismissed for default on 5^th September, 2007. Subsequently, an application for restoration of the suit was filed. Accordingly, the suit was restored to file. After restoration of the suit, the Defendant No.1 in terms of the order passed by this Court in W.P.(C) No.4197 of 2007 sold the Schedule ‘A’ property to the Defendant No.3. Since W.P.(C) No.4197 of 2007 was then pending before this Court, the Defendant No.3 filed an

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application therein for a direction to take delivery of possession and enjoy the property pursuant to the order passed by this Court. Accordingly, the writ petition was disposed of vide order dated 28^th September, 2010 holding that if, at all, Schedule ‘A’ property is held to be partiable, then the Defendant No.3 shall be guided by the decree and cannot claim any equity on the basis of his purchase except claiming for refund of the consideration amount along with interest from his vendor, namely, Defendant No.1. Such order was never challenged in any higher forum and has attained its finality.

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When the matter stood thus, an application was filed by the Plaintiffs and Defendant Nos.1 and 2 under Order XXIII Rule 3 C.P.C. for compromise before learned trial Court and the impugned order under Annexure-19 was passed. Learned trial Court vide order under Annexure-19 allowed the petition for compromise in respect of Schedule ‘B’ to ‘E’ property, but refused to grant the prayer in respect of Schedule ‘A’ property. Assailing the same, the Petitioners filed CMP No.915 of 2022, which was disposed of on 16^th February, 2023 holding that a revision would be maintainable against the rejection of the prayer made in the petition under Order XXIII Rule 3 C.P.C. Accordingly, the Petitioners preferred Civil Revision No.2 of 2023. Learned Revisional Court while adjudicating the matter although referred to the entire fact but did not discuss the effect of the order dated 28^th September, 2010 passed in W.P.(C) No.4197 of 2007. In fact, none of the Courts discussed the effect of the order passed by this Court in W.P.(C) No.4197 of 2007 while adjudicating the petition under Order XXIII Rule 3 C.P.C.

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In the meantime, the Plaintiffs and Defendant Nos.1 & 2 have entered into a compromise with regard to Schedule ‘A’ property in which the Plaintiff No.1 has taken the responsibility to refund the entire consideration amount paid by Defendant No.3 in terms of the order dated 28^th September, 2010 passed by this Court in W.P.(C) No.4197 of 2007. The said settlement has been reduced to writing and a settlement deed has been prepared.

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In view of the above, Mr. Maharana, learned counsel for the Petitioners submits that the petition under Order XXIII Rule 3 C.P.C. requires fresh consideration by learned trial Court. 8. None appears for Opposite Party No.3 although he is represented by learned counsel. 9. Taking into consideration the facts and circumstances of the case, this Court feels that the matter requires fresh consideration by learned trial Court keeping in mind the observation made by this Court in the order dated 28^th September, 2010 in W.P.(C) No.4197 of 2007. It is moreso because on perusal of the impugned orders under Annexures-19 and 26, this Court finds that although learned Courts have referred to the said order, but did not discuss the effect of the order on the petition under Order XXIII Rule 3 C.P.C. 10. In view of the above, the impugned orders under Annexures-19 and 26 are set aside and the matter is remitted to learned Civil Judge (Senior Division), Rourkela to adjudicate the petition under Order XXIII Rule 3 C.P.C. afresh taking into consideration the registered deed of settlement executed between the Plaintiffs and Defendant Nos.1 and 2 and giving opportunity of hearing to the parties concerned.

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