Dhires Chandra Chakravorti, J. - (1.) This Rule is directed against an order of the learned Subordinate Judge, 4th Court at Alipore dismissing Misc. Case No. 60 of 1976 arising out of an application under section 47 of the Code of Civil Procedure.
(2.) This case had a chequered career and accordingly consider it not necessary to refer in details to the facts leading to the present Rule. In course of the judgment shall refer to only such facts as may be found necessary for the disposal of the present Rule.
(3.) One Nabin Krishna Mitra who was the original owner of the suit properties died on May 14, 1929 leaving behind him his widow Khirodamohini Dassi as his sole heir under the Hindu Law. Said Nabin Krishna also left at his death five daughters, namely, Nripendra Bala, Lilabati, Pravabati, Usha Rani and Shailabala. Said Khiroda Mohini while in possession of those properties executed a deed of gift sometime in 1937 in favour of her five daughters named above and she later died on September 1, 1945. In the mean time said Lilabati died sometime in 1944 leaving behind her as her heirs the opposite parties Nos. 1 to 6 who are the decree-holders. Be it noted here that said Nripendra Bala died on June 20, 1948. After the death of Khirodamohini three of her daughters, namely, Prabhavati, Usha Rani and Shailabala executed a deed of gift on October 30, 1945 whereby 4 annas out of their the then 12 annas share of the properties which they received from their mother under the 6aid deed of gift executed by her was given to the said opposite parties Nos. 1 to 6. Said Usha Rani brought sometime in 1946 a partition suit being. Title Suit No. 28 of 1946 in the 3rd Court of the Subordinate Judge at Alipore (which on being transferred to the 2nd Additional Subordinate Judge's Court was re-numbered as Title Suit No. 10 of 1948). That Title Suit No. 10 of 1948 was decreed in a preliminary form. Be it noted that there was an earlier partition suit brought by said Lilabati. That earlier partition suit was originally numbered as T.S. No. 15 of 1938 and on being transferred to the 3rd Additional Court of Subordinate Judge at Alipore it was re-numbered as Title Suit No. 15 of 1940. In the said later suit being Title Suit No. 10 of 1948 it was held that the decision in the said earlier Title Suit could not operate as res judicate so far as the said Title Suit No. 10 of 1948 is concerned inasmuch as the two suits were brought on two different causes of action. From the decision in said Title Suit No. 10 of 1948 Gostha Behari Ghosh, present petitioner and his brother Gobiuda Das Ghosh both of whom were sons of said Nripendra Bala, preferred an appeal being F.A. No. 208 of 1948 as their mother said Nripendia Bala died after the passing of the preliminary decree sometime in 1949. In said F.A. No. 208 of 1948 it was held that the sons of deceased Nripendra Bala, namely, Gostha Behari Ghosh and Gobinda Das Ghosh were not entitled to challenge the decree for partition as their mother had only a limited interest in the suit property which would ensure during her life-time. In this view of the matter this Court in F.A. No. 208 of 1948 affirmed the decision of the trial Court with certain modifications. The decree for accounts was set aside and the question of compensation for improvement was left open. Thereafter a solahnama was filed in the Title Suit No. 10 of 1948 praying for the passing of a final decree in terms of the Solahnama and the map attached thereto. The final decree was accordingly passed in terms of the Solahnama. The decree-holders put the final decree into execution in Title Execution Case No. 11 of 1954. That Execution Case on being transferred to the Court of 4th Subordinate Judge at Alipore was re-numbered ai Title Execution Case No. 19 of 1958. In the said Execution case there were several successive applications made under section 47 of the Code of Civil Procedure by the present petitioner. The impugned order is one that was made in the last of those applications under section 47 of the Code of Civil Procedure.;