Jharkhand High Court
Sotam Kumar Ghosh vs Sapan Kumar Ghosh on 12 January, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 6143 of 2018
1. Sotam Kumar Ghosh
2. Gotam Kumar Ghosh
3. Tolu Ghosh ... ... Petitioners
Versus
1. Sapan Kumar Ghosh
2. Tapan Kumar Ghosh
3. Utam Kumar Ghosh ... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioners : Mr. Ramchander Sahu, Advocate
For the Respondents :
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Order No. 05 Dated: 12.01.2021
The present writ petition is taken up today through Video
conferencing.
The present writ petition has been filed for quashing the
order dated 18.09.2018 passed by the Civil Judge (Senior Division)-I,
Dhanbad in F.D No. 5 of 2017 (Original Suit No. 450 of 2015),
whereby the court has issued a writ for allotment of share and
preparation of Takhta.
2. The learned counsel for the petitioners submits that the
respondents herein filed Original Suit No. 450 of 2015 claiming half
share in the suit land. The claim of the plaintiffs/respondents was
that they and the petitioners are the legal heirs and sons of late
Kalipad Ghosh who had purchased a land situated at Village-Dhansar,
P.S.-Manaitand, District-Dhanbad, Mouza-50 under Khata No. 19, Plot
No. 1113, measuring an area of 4 Kattha along with a well in the
name of their mother late Maya Rani Ghosh vide Sale deed no. 7170
dated 14.06.1989 from Sudama Kumharin and a pucca house was
constructed comprising four rooms with kitchen as well as toilet and
bathroom over the said land. It was further claimed by the
respondents that their father also purchased the land in Mouza-
Godhar Gaunsadih, Mouza No. 57 under Khata No. 3, Plot No. 581,
measuring an area of 2½ Kattha vide registered sale deed no. 8123
dated 20.12.1992 from Nakul Prasad Barhai.
3. It is contended on behalf of the petitioners that the trial
court finally decreed the suit ex-parte on 01.12.2016 by holding that
the plaintiffs/respondents are entitled to get half share in the suit
property. Thereafter, the decree holders/respondents made an
application under Order 26 Rule 13 read with Section 151 CPC for
allotment of share and preparation of Takhta. The judgment
debtors/petitioners subsequently filed a petition under Section 47
CPC for dismissing the application of the decree holders, however, the
same was rejected by the court below and vide impugned order
dated 18.09.2018, a direction was issued for writ of allotment of
share and preparation of Takhta.
4. It is further contended that the decree passed in Original
Suit No. 450 of 2015 is bad on non-joinder of necessary parties. It is
submitted that Smt. Maya Rani Ghosh (mother of the defendants/
petitioners) had executed the gift deed in favour of Smt. Ruby Rani
Ghosh, W/o Sri Soumik Ghosh of Manaitand, Dhanbad on 07.03.2010
and she is residing over the part of the suit property by constructing
four rooms along with kitchen as well as toilet and bathroom etc. at
her own cost. It is also submitted that the respondents have obtained
the ex-parte decree by making wrong submission and by fraudulent
method as in title partition suit, each co-sharer is a necessary party.
In fact, the respondents have no share in the properties in question.
It is also submitted that the petitioners had no knowledge about the
pendency of the suit and they were never served any summons to
appear.
5. Heard the learned counsel for the parties and perused the
materials available on record. The petitioners have challenged the
impugned order dated 18.09.2018, whereby the application of the
petitioners under Section 47 CPC was rejected and a writ was issued
in favour of the plaintiffs/respondents for allotment of share and
preparation of Takhta.
6. In the ex-parte judgment passed by the court below, it
has been recorded that in spite of issuance of summons through
Nazarat, registered post and even after publication in the daily
newspaper circulated in the locality of the defendants/petitioners,
they did not appear in the suit and as such, the court proceeded
ex-parte in the same.
7. Even after more than four years of passing of the
impugned judgment and decree, the petitioners have not taken
recourse of challenging the judgment either under Order IX Rule 13
CPC for setting aside the judgment in the same court or by filing an
appeal before the appellate court under Section 96(2) CPC. Thus, the
attitude of the petitioners appear to be careless and lethargic in
taking recourse of law by challenging the ex-parte judgment and
decree.
8. In the case of "Kanwar Singh Saini Vs. High Court of
Delhi" reported in (2012) 4 SCC 307, the Hon'ble Supreme Court
has held as under:
25. It is a settled legal proposition that the executing
court does not have the power to go behind the
decree. Thus, in absence of any challenge to the
decree, no objection can be raised in execution. (Vide
State of Punjab v. Mohinder Singh Randhawa [AIR
1992 SC 473]).
9. Thus, it is not for the executing court to decide the legal
infirmity in the decree, rather it has to execute the same as it stands.
Since the decree passed by the court below is still enforceable, the
application of the decree holders to issue writ for allotment of share
was rightly allowed by the learned court below and as such the same
needs no interference.
10. The writ petition being devoid of merit is accordingly
dismissed.
(Rajesh Shankar, J.)
Manish
