IN THE HIGH COURT OF JUDICATURE AT PATNA
FA No.35 of 2005
SMT.KRISHNA KUMARI
Versus
BINOD MISHRA & ORS
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ORDER
36. 06/08/2010. Heard the parties on the Interlocutory
Application No.6799 of 2007.
This Interlocutory application has been filed by
the respondent No.1 on 10.12.2007 praying therein for
recalling the order dated 04.10.2007.
For the purpose of deciding this application the
short facts may be stated that the plaintiff-respondent
filed the partition suit being partition suit No.83 of
1982. The said partition suit has been decreed and the
defendant No.3, Smt. Krishna Kumari Devi has filed this
First Appeal against the said preliminary decree. During
the pendency of this Appeal, I.A. No.4164 of 2007 was
filed by the appellant seeking permission to sell one
biggha land of Khata No.1705, Plot No.5633 and 10
kattha land of R.S. Plot No.372, 5 decimals of R.S. Plot
No.377 and 12 decimals of R.S. Plot No.735 because
the appellant was earlier restrained from selling any
property. By terms of order dated 04.10.2007, this
Court allowed the I.A. with respect to property
mentioned in paragraph 22 of the petition, i.e., 1
biggha out of Khata No.1705, R.S. Plot No.5633.
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Subsequently, to recall this order, the plaintiff-
respondents have filed this I.A. No.6799 of 2007 on the
ground that by surprising facts, the appellant has
obtained this order.
The learned counsel for the plaintiff-respondent
submitted that for obtaining permission to sell medical
prescriptions have been annexed which are from the
year 2002-2005 and during this period, the appellant
has sold the following properties :
(a) 4 decimals out of Plot No.823 on
06.10.2004 for Rs.30,000/-.
(b) 8 decimals in sale deed dated
25.01.2000 for one lakh.
(c) 4 decimal plot No.5632 and 5633 by
3 sale deed dated 25.01.2006 for
Rs.1.5 lakh.
(d) 4 decimal of the above plot for
Rs.1,62,000/-.
(e) 8 decimal plot No.823 sale deed
dated 18.06.2006 for Rs.3 lakhs.
(f) 6 decimal out of above plot No.823
dated 18.06.2006 for Rs.1,25,000/-.
(g) 2 decimal of the said plot on the
same date to another persons for
Rs.75,000/-
(h) 6 decimal of that plot on the same
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date to Ramjhari Devi for
Rs.2,13,750/-.
The learned counsel further submitted that in
fact the appellant has received more than 27 lakhs for
the lands sold by her during this period, but in the sale
deeds only 13 lakhs and odd has been shown.
According to the learned counsel, a substantial amount
has been received by her but on the ground of ailment,
she is selling the property and for that earlier, she
violated the order of injunction, she was punished by
the trial Court which was upheld by this Court. The
learned counsel further submitted that considering all
these facts which are suppressed by the appellant, this
Court by terms of order dated 24.01.2008 directed the
parties to maintain status quo regarding remaining
portion of plot No.5633. It appears that while passing
the said orders, the appellant had already sold 12
kattha land. It was prayed by the respondents to
modify the order dated 04.10.2007 to the extent that
she is permitted to sell only 12 kattha instead of 1
biggha of plot No.5633 because she had already sold 12
kattha land. It further appears that while hearing this
I.A. this Court by terms of order dated 16.01.2009
further restrained the appellant from negotiating for
sale.
Counter affidavit, reply to counter affidavit and
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rejoinder etc. have been filed by the parties. The
learned counsel for the appellant submitted that the
monthly expense of the appellant is about Rs.52,000/-
and she is suffering from cancer. However as stated
above, Hon’ble Bench passed the order dated
04.10.2007 considering the facts and circumstances of
the case, restrained the appellant from selling any
further. The same order was passed again on
16.01.2009 by another Bench of this Court. It further
appears that since 2007 for last 2½ years, the appellant
has been restrained by this Court from selling any
property and now, therefore, after such a long period, it
will not be proper to vacate the same. In such
circumstances, the order dated 4th October, 2007 is
modified to the extent that the appellant is permitted to
sell only 12 kattha land of plot No.5633.
The learned counsel for the appellant submitted
that in fact after getting permission dated 04.10.2007,
the appellant has sold other 8 kattha land also and sale
deed has been executed but because of restrained order
dated 24.01.2008, the sale deed could not be presented
for registration. The learned counsel further submitted
that after taking the money, the appellant has spent the
same.
Even if the appellants version is accepted that
sale deed has been executed then also from
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24.01.2008, still today i.e., for about 2 ½ years, the
same has not been registered.
From the above discussion of the materials
available on record, the statements made in the
Interlocutory application, counter affidavit and reply
and rejoinder etc., it appears that during the period of
2003-2006, property of more than 13 lakhs has already
sold by the appellant and the only ground is that the
appellant is ailing old lady. It may be mentioned that
she has one son and one daughter also. No statements
have been made by her that they are not helping her.
Considering the above facts and circumstances
of the case, I direct that the order dated 24.01.2008
and 16.01.2009 shall continue till the disposal of the
First Appeal. In other words, the appellant is restrained
from selling any further property by registering any
document either sell or gift.
In view of the above contentions of the parties,
it is desirable that the appeal itself be heard at an early
date. The learned counsel for the respondent No.1 & 2
submitted that he will file Vakalatnama on behalf of the
respondent No.3 to 5 and the learned counsel for the
appellant submitted that he will see that the appellant’s
daughter, respondent No.6 and son respondent No.7
shall appear by filing Vakalatnama within one week.
The learned counsel for the plaintiff-respondent also
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submitted that Vakalatnama will be filed within one
week. If Vakalatnama are field as stated above, the
Appeal itself may be listed for final hearing under the
heading for Hearing in the first week of September,
2010 without paper book.
It is stated that the respondent No.8 is stranger
to the family and has neither filed written statement nor
contested the suit and, therefore, he is not required to
be heard in the Appeal.
The Interlocutory Application No.6799 of 2007 is
disposed of.
Sanjeev/- (Mungeshwar Sahoo, J.)