ATTA HUSSAIN KHAN Vs. LUTNI DEVI

JUDGEMENT

(1.) This Revision petition has been preferred against the order dated 20.2.1991 passed by learned Munsif, Koderma in Misc. Case No. 17 of 1985.

(2.) The brief facts of the case are as follows. The petitioner as plaintiff filed the Title Suit No. 15/1980 before the Court of Munsif, Koderma at Hazaribagh for declaration of title and cancellation of the sale deed. According to the petitioner, after service of summon, the defendant did not appear and ultimately the suit was decreed ex parte on 26.6.1980. On the basis of the ex-parte decree, the petitioner proceeded with execution of the decree in Execution case No. 1 of 1985 and the same was filed on 7.1.1985. On a notice being issued under Order XXI Rule 22 C.P.C. The Opposite party-judgment debtor appeared before the executing Court on 23.3.1985. According to the petitioner the cost decree was paid by the judgment. debtor-Opposite party on 4.7.1985, although, this point is controverted from the side of the Opposite party. Then the Opposite party filed a petition under Order IX Rule 13 C.P.C. on 11.10.1985, which has been registered as Misc. Case No. 17/85. On that petition, the plaintiff-petitioner appeared and filed rejoinder, to the effect that on the basis of the facts and on the admission being made by the Opposite party in the petition under Order IX Rule 13 C.P.C. itself the Misc. Case is liable to be rejected as being barred by limitation on the face of it. But, the learned court below did not allow such prayer of the petitioner and proceeded with the petition under Order IX Rule 13 C.P.C. Then a petition was filed under Order VII Rule 11 C.P.C. for rejection of the petition itself as not being entertainable in law. But, by the impugned order dated 20.2.1991, the said prayer of the petitioner was rejected Hence, this Civil Revision petition.

(3.) At the admission stage of this revision petition, notices were issued to the Opposite party but even after service of notice none appeared. Thereafter, the revision was admitted and then again notices were issued and even then after service of notice, the Opposite party did not appear.