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Gurei Bewa and ors. Vs. Pabitra Rout and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberM.J.C. No. 68 of 1982
Judge
Reported in1984(I)OLR463
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151, 152 and 155
AppellantGurei Bewa and ors.
RespondentPabitra Rout and ors.
Appellant AdvocateR.N. Sinha and ;Pramila Mohanty, Advs.
Respondent AdvocateP.K. Misra, Adv.
DispositionCase allowed
Excerpt:
.....corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held,..........munsif passed the following order:'the suit be decreed on contest against the defendants. the suit sale deeds executed by defendant no. 3 in favour of defendants 1 and 2 for the suit lands are set aside. taking the nature of the contest, defendant no. 2 alone do pay the costs of the suit. pleader's fee at contested scale.'defendant no. 2, opposite party no. 7 herein, preferred appeal before the subordinate judge, nayagarh, which was registered as title appeal no. 5/7 of 1968/1957. the learned first appellate court held that the sale deed ext. a in favour of defendant no. 2 executed by defendant no. 3 was supported by consideration but the same was not for legal necessity of the family and that it was not binding on the plaintiffs. on these findings the appeal was dismissed with.....
Judgment:

Pathak, C.J.

1. A brief narration of the facts leading to the present application is that the petitioners as plaintiffs filed O. S. No. 39/64-1 in the Court of the Munsif, Nayagarh, for sitting aside two sale deeds, one dated 14-9-62 in favour of defendant No. 1 and the other dated 21-1-63 in favour of defendant No. 2, both executed by defendant No. 3, the paternal uncle of the minor plaintiffs 2 and 3, petitioners 2 and 3 herein. Defendant No. 1 did not contest the suit. Defendant No. 2 appeared and contested. The suit was for the following reliefs.

(i) For declaring the sale deeds void and not binding on the plaintiffs.

(ii) For recovery of possession of the suit property,

(iii) For costs of the suit,

(iv) For any other relief td which the plaintiffs are entitled.

The trial Court inter alia struck the following issues:

'Issue No. 3-Is the sale deed in favour of defendant No. 2 legal valid, for consideration and legal necessity and binding against the plaintiffs?

Issue No. 4-Is the said deed of sale void ab initio?

Issue No. 5-To what reliefs, if any, are the plaintiffs entitled?'

The learned trial Court in paragraph 5 of the judgment has held:

'I hold that no consideration has passed, for the sale deed executed by defendant No. 3 in favour of defendant No. 2 and the sale is not for legal necessity.'

While considering the validity of the sale deeds under Issue No. 4, the learned trial Court in paragraph 15 of the judgment has held:

'They arc not void ab initio but are voidable and should be set aside.'

In paragraph 18 of the judgment, while considering Issue No. 5, She learned trial Court has held as follows:

'From the findings made in Issue No. 3, it is seen that the sale deed executed by defendant No. 3 in favour of defendant No. 2 is also not for consideration and it is not for any legal necessity. In view of the above findings, the plaintiffs are entitled to the reliefs they claim.'

In the ultimate analysis, the suit was allowed and the learned Munsif passed the following order:

'The suit be decreed on contest against the defendants. The suit sale deeds executed by defendant No. 3 in favour of defendants 1 and 2 for the suit lands are set aside. Taking the nature of the contest, defendant No. 2 alone do pay the costs of the suit. Pleader's fee at contested scale.'

Defendant No. 2, opposite party No. 7 herein, preferred appeal before the Subordinate Judge, Nayagarh, which was registered as Title Appeal No. 5/7 of 1968/1957. The learned first appellate Court held that the sale deed Ext. A in favour of defendant No. 2 executed by defendant No. 3 was supported by consideration but the same was not for legal necessity of the family and that it was not binding on the plaintiffs. On these findings the appeal was dismissed with costs.

Defendant No. 2 not being daunted preferred an appeal in this Court, registered as Second Appeal No. 70 of 1969. The learned Single Judge disposed of the appeal by judgment dated 22-6-72 and in paragraph 3 of the judgment affirmed the finding of the lower appellate Court that the aliance, defendant No. 2, failed to establish legal necessity. However, in paragraph 4 of the judgment, the learned Single Judge found that it was quite equitable to direct in the suit that the defendant No. 2 was entitled to recover the entire consideration money of Rs. 380/- from the defendant No. 3 and dismissed the second appeal subject to the direction regarding refund of the consideration money by the 3rd defendant.

After the disposal of the second appeal, the petitioners filed Execution Case No. 4 of 1980 in the Court of the Munsif, Nayagarh, for execution of the decree in C. S. No. 39/64. I am affirmed by this Court in Second Appeal No. 70 of 1969. Defendant No. 2, opposite-party No. 7, filed an objection in the said execution case stating that the execution case was not maintainable as there was no decree for recovery of possession. On the other hand, he filed Execution Case No. 13 of 1980 in the Court of the Munsif, Nayagarh, for realisation of Rs. 380/- from the defendant No. 3. Faced with the predicament of the objection raised by the defendant No. 2 in the execution case, the petitioners filed an application under Section 152, C. P. C. for amendment of the decree on the ground that although there learned Munsif held that the plaintiffs were entitled to all the reliefs prayed for, due to an accidental slip and omission in the ordering portion and the decree following it, ha did not specifically mention about the1 recovery Of possession of the suit property from the defendant No. 2. The learned Munsif by order-dated l1-5-82 did not entertain the application under Section 152, C. P. C. on the ground that since the judgment of the trial Court had merged in the appellate decree of the High. Court, the trial Court had become functus officio. Thereafter, the present application has been filed.

2. Mr. P.K. Misra, the learned counsel appearing on behalf of opposite-party No. 7, submits that in the operative part of the decree there is no specific order about recovery of possession of the suit property. If the petitioners were aggrieved for non-incorporation of such a direction, they could have filed an appeal. The further contention of the learned counsel is that the present application is barred by limitation because the petitioners did not take staps in the matter within the period of limitation.

Having gone through the entire matter and in view of the facts stated above, no one should be in doubt that the learned Munsif has held that the plaintiffs are entitled to all the reliefs they have claimed. Besides, in the prayer portion which I have already noted above, the plaintiffs made a specific prayer for recovery of possession of the suit property. The learned trial Court having held that plaintiffs were entitled to all the reliefs they claimed, non-incorporation of a specific direction for recovery of possession in the operative part of the decree was merely accidental. On a perusal of the judgment in the second appeal, it is clear that the learned Single Judge proceeded on the basis that all the reliefs claimed were decreed by the trial Court and affirmed by the first appellate Court and he dismissed the second appeal only with a direction for refund of the consideration money of Rs. 380/-by the defendant No. 3. In view of the above factual situation, I find that both in the judgment and the decree, the learned trial Court should have incorporated a direction for recovery of possession of the suit property, the suit having been fully decreed.

3. In view of the facts and circumstances of the case discussed above, the question of limitation sought to be urged by the opposite parties is of no substance.

4. In the result, the M. J. C. is allowed. The trial Court is directed to amend the judgment and the decree by incorporating therein a direction that the plaintiffs are entitled to recovery of possession of the Suit property from defendant No. 2.

No costs.


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