Jharkhand High Court
Smt. Uma Trivedi vs Dhaneshwar Pandey & Others on 20 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 665 of 2018
........
Smt. Uma Trivedi .... ..... Appellant
Versus
Dhaneshwar Pandey & Others .... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
............
For the Appellant : Mr. Jitendra Nath Upadhyay, Advocate.
For the Respondents : Mr. P.P.N. Roy, Sr. Advocate.
(Nos.13 & 14) : Mr. P.A.N. Roy, Advocate.
For the Respondents : Mr. Subodh Kumar Dubey, Advocate.
(Nos. 2 to 5, 7 to 12 & 16)
........
06/20.07.2021.
Heard, learned counsel for the appellant, Mr. Jitendra Nath
Upadhyay and learned counsel for the respondent nos. 13 & 14, Mr.
P.P.N. Roy, Senior Advocate assisted by learned counsel, Mr. P.A.N.
Roy and learned counsel for the respondent nos. 2 to 5, 7 to 12 & 16,
Mr. Subodh Kumar Dubey.
Learned counsel for the appellant has submitted that during
pendency of the appeal before this Court, respondent no. 19 namely,
Awadesh Kumar Pandey, son of Late Shiv Nath Pandey has died on
17.08.2020, as such, two weeks' time may be granted to file
substitution petition.
Learned counsel for the appellant has further submitted that he
has no information, whether substitution petition has been filed in the
court below or not?
Learned senior counsel, Mr. P.P.N. Roy assisted by learned
counsel, Mr. P.A.N. Roy, appearing for the respondent nos. 13 & 14
has submitted that I.A. No. 6068/2020 has been filed on behalf of
respondents for vacating the interim order passed by this Court vide
order dated 20.12.2019, for maintaining status quo, on the ground,
that respondent nos. 3, 7, 9, 10, 12 and 16 have appeared in this case
through their counsel, Mr. Subodh Kumar Dubey and the respondent
no. 6 namely, Smt. Punam Dubey, wife of Late Hriday Nath Dubey,
D/O Late Ramanand Pandey has died on 08.03.2018. Respondent No.
15 namely, Gupteshwar Tiwri has not appeared in the learned court
below in Title Partition Suit No. 117/2017, pending before the learned
Civil Judge, Senior Division-I, Jamshedpur and he is not a necessary
party, so far respondent nos. 13 namely, Smt. Urmila Pandey and
respondent no. 14 namely, Smt. Mola Pandey are concerned, they are
main contesting respondents, and have filed Interlocutory Application
to vacate ad interim order.
Learned counsel for the respondent nos. 13 & 14 has submitted
that while passing the impugned order, learned court below has
considered the fact in internal page-5 & 6 of the impugned order,
which is re-produced below:-
"After hearing the parties, perused the case record of the instant
suit as well as T.P.S. No. 15/2000 and in course of hearing both
the parties have admitted that, one Muni Nath Pandey was the
common ancestor of the parties to T.P.S. no. 15/2000 as well as of
the instant suit. It is also admitted fact that one of the son of Late
Muni Nath Pandey namely Ramjee Pandey had instituted the
T.P.S. no. 15/2000 against Shiv Nath Pandey, Dhaneswar Pandey
and other legal heirs and successors of Ramanand Pandey and
Sarbadanand Pandey. It is also admitted fact in course of hearing
of the injunction petition that, on the death of Ramjee Pandey his
legal heirs namely Urmila Pandey and Mola Pandey have been
substituted as plaintiffs in T.P.S. No. 15/2000 who are defendant
no. 13 and 14 of the instant suit. It is also admitted fact between
the parties in course of hearing that Shiv Nath Pandey, the father
of the plaintiff and defendant no. 19 to 21 and husband of
defendant no. 18 was alive till passing of final decree in favour of
the Urmila Pandey and Mola Pandey. It is also admitted fact
between the parties that the property described in Schedule 'C' of
the plaint of the instant suit was also described in Schedule 'B' of
the plaint of T.P.S. no. 15/2000. Therefore, it is clear that, there is
no dispute with regard to share in other properties except
schedule 'C' of the instant suit between the plaintiff and other
defendants of the instant suit. Whereas the plaintiff has claimed
that schedule 'C' property is self acquired property of her father
namely Shiv Nath Pandey who was party to T.P.S. No. 15/2000
and he was alive till preparation of final decree in favour of the
plaintiffs of T.P.S. No. 15/2000 and now the defendant no. 13 and
14 of the instant suit. Therefore, it is clear that Shiv Nath Pandey
has not challenged the preliminary decree and final decree during
his life time. It is also admitted fact between the parties that all
the legal heirs of Late Shiv Nath Pandey except the plaintiff have
been made party in the execution proceeding of final decree of
T.P.S. no. 15/2000.
So far with regard to execution of decree against the
judgment debtor such as Shiv Nath Pandey who dies before the
satisfaction of decree in T.P.S. No. 15/2000 is concerned, it is
clearly provided under the provision of section 50 of the Code of
Civil Procedure whereas it is clear that, neither Shiv Nath Pandey
nor his legal representative have challenged the preliminary
decree dated 03.07.2001 and final decree dated 25.07.2002, in
which the suit property of the instant suit was also involved and
Shiv Nath Pandey, father of the plaintiff was alive till passing of
the final decree. Therefore, it is clear that the plaintiff being
daughter of Shiv Nath Pandey wants to reopen the partition
proceeding which has already been decided and the final decree
has been passed in T.P.S. no. 15/2000. Moreover the final decree
has also been executed in an execution proceeding in which other
legal heirs of Lt. Shiv Nath Pandey except the plaintiff were
party. It is also obvious that, the plaintiff by filing injunction
petition wants to retrained the plaintiffs of T.P.S. No. 15/2000
from enjoying the usufructs of the final decree passed in T.P.S.
no. 15/2000 without challenging the same in the instant suit
which is not permissible under the law."
Learned senior counsel for the respondent nos. 13 & 14, has
thus submitted that interim order of maintaining status quo may be
vacated.
Under the aforesaid circumstances, in view of aforesaid reason
as mentioned in Impugned Order, the interim order dated 20.12.2019
passed by this Court is hereby vacated. The learned court below is
directed to proceed in the trial.
I.A. No. 6068/2020 is hereby allowed.
Learned counsel for the appellant is at liberty to file
substitution petition with regard to respondent nos. 6 & 19.
However, the learned court below is directed to inform the
parties of the suit to appear before this Court and file affidavit
regarding their appearance in present M.A. No. 665/2018 before the
court blow.
Put up this case after two weeks.
(Kailash Prasad Deo, J.)
Sunil/-
