SAVITRI DEVI Vs. GOPAL PD KESHARI

JUDGEMENT

(1.) THESE two civil revisions by defendant no.4 and defendant nos. 5. and 6 respectively are directed against order dated 20th January 1997 by which the 3rd Subordinate Judge, Patna, rejected their prayer to recall the earlier order dated 7th February 1996.

(2.) IN order to appreciate the nature of the controversy, some facts may be stated as follows. The plaintiffs opposite party filed Title Suit No. 356/24 of 1980/86, inter alia for partition as well as for declaration that certain sale deed executed by defendant no.3 in favour of defendant nos. 4, 5 and 6 i.e. petitioners herein are not binding on them. they also prayed for recovery of possession. The suit was decreed. The plaintiffs, defendant nos. 1 and 2 and defendant no. 3 were granted 1/3rd share each in the suit property. The court also declared that the two sale deed in question were not binding on the plaintiffs. Defendant nos.4, 5 and 6 i.e. the petitioners herein preferred separate title appeals, which were dismissed on 29th July 1995. Against the judgment, Second Appeal Nos. 210 of 1995 and 236 of 1995 have been filed and the same are pending in this Court. Second Appeal No. 236 of 1995 is said to have been admitted.

(3.) IN the meantime, defendant no.3 died. After her death, the plaintiffs filed application to expunge her name from the decree and to direct and Advocate Commissioner, who had been appointed in the final decree proceeding, which was levied by the plaintiffs, to allot 1/2 share in the suit property to the plaintiffs and defendant nos. 1 and 2 respectively, instead of 1/3rd share allotted to them by the preliminary decree. The court allowed the prayer on 7th February 1996. The petitioners filed application for recall of the said order, which has been rejected by the impugned order.