- (1.) THIS civil revision application has been filed against the order dated 15.3.2005 passed in Execution Case No. 4 of 1992 by the learned Sub -Judge -I, Daltonganj rejecting intervener's application" filed by the petitioner on 21/22.6.1992.
(2.) MR . Shivnath, learned senior counsel, appearing for the petitioner submitted that petitioners are the sons of second wife of Rajnath Singh who was defendant No. 1 in the Partition Suit No. 22 of 1975 and after his death in 1978 petitioners were not substituted as party and therefore, the petitioners had to file the said petition for intervention for raising their objections and claims in the partition suit. He relied on the judgment of Ashan Devi, reported in 2004(1) JCR 124(SC), and submitted that even a third party could raise objection under Section 47 or under Order 21 Rule 97 to 100 C.P.C., but the learned court below has rejected the application filed by the petitioners, for adding them parties and hearing them, on the ground that they were not the parties in the suit. Mr. Amar Kumar Sinha, appearing for the opposite parties, on the other hand, supported the impugned order and submitted that the decree was passed as far back as on 21.5.1977 and Rajnath Singh died in 1978 but the petition for intervention was filed in 1992. He referred to the petition filed by the petitioners in the court below (Annexure -A) and submitted that no case was made out by the petitioners for Impleading them as parties, and therefore their application made at highly belated stage was rightly rejected. He further submitted that the case of Ashan Devi (supra) is not applicable in this case, as the petitioner's application was not under Section 47 or Order 21 Rule 97 to 101 C.P.C. He further submitted that a deed of gift dated 22.12.1971 (Annexure -C) was executed by which Rajnath Singh gave 2.50 acres of land to the petitioners who were sons of his concubine, and declared that they will not be entitled to any share. He therefore submitted that the executing court has rightly rejected the petition for intervention, filed by the petitioners.
(3.) IN reply Mr. Shivnath submitted that whether in view of the said deed of gift, petitioners will be entitled to any share or not, is required to be decided by the executing court.;