IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.32 of 2005 ---- 1. PREM MAHTO 2. KAMDEO MAHTO BOTH SONS OF RAMESHWAR MAHTO RESIDENT OF VILLAGE TONAPATHER TOLA TETARIA, P.S. KATORIA, DISTRICT BHAGALPUR. ... Plaintiffs-Appellants-APPELLANTS Versus 1. CHANDESHWARI MODI S/O LATE SIDIKH MODI RESIDENT OF VILLAGE TONAPATHER TOLA TETARIA P.S. KATORIA, DISTRICT BHAGALPUR. 2. RAMESHWAR MAHTO S/O LATE NATHU MAHTO 3. MITAN MAHTO S/O RAMESHWAR MAHTO BOTH RESIDENTS OF VILLAGE TONAPATHER TOLA TETORIA, P.S. KATORIA, DISTRICT BHAGALPUR. ... Defendants-Respondents-RESPONDENTS. ----- For the Appellants : Mr. Ajay Kumar Singh and Rakesh Kumar Sinha, Advocates For the Respondent No.1: Mr. Raza Ahmad,Sr.Adv. with Ramchandra Prasad Bharti and Ajay Kumar,Advocates ----- 12. 5.1.2010. Heard learned counsel for the appellants and the learned counsel for the respondent no.1. 2. This Second Appeal has been filed by the plaintiffs-appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No.48 of 1983 which was filed by the plaintiffs-appellants for declaration that the decree passed in Money Suit No.98 of 1972 - 2 - as well as the sale in Money Execution Case No.40 of 1975 in favour of defendant- respondent no.1 was void, illegal and nullity and for other ancillary relief. The said suit was dismissed on contest by the learned Munsif, Banka vide his judgment and decree dated 21.6.1997. 4. Against the aforesaid judgment and decree of the trial court, the plaintiffs filed Title Appeal No.69 of 1997, which was also dismissed on contest by the learned Additional District Judge-II, Banka vide his judgment and decree dated 29.10.2004. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed. 5. Learned counsel for the appellants vehemently challenges the said judgments and decree claiming that the learned courts below have completely ignored that aspect of Ext.D by which the execution case which was filed against one of the plaintiffs was dismissed for default. 6. The claim of the plaintiffs was that Money Suit No.28 of 1972 was filed by - 3 - defendant-respondent no.1 against the plaintiffs-appellants for recovery of the loan amount collusively as the plaintiffs were minors and the claim in the said money suit was barred by law of limitation and hence the decree of that suit was neither valid nor was binding upon the plaintiffs. It was also claimed that after the aforesaid ex- parte decree against the two defendants of the said suit who are plaintiffs in the instant suit, Money Execution Case No.40 of 1975 was initiated only against one of them and the said execution case was dismissed for default on 3.7.1974 and hence the subsequent sale in the execution case was not legal and void. 7. From the averments of learned counsel of the parties as well as from the materials on record including the impugned judgments it is quite apparent that both the learned courts below very carefully considered the evidence and pleadings of the parties and thereafter arrived at the finding that the father of the plaintiffs, as karta of the family, had taken loan from Defendant - 4 - No.1 and executed a receipt dated 11.5.1971 and on its basis the money suit was filed in the year 1972 and hence it was not barred by the law of limitation. 8. It was further found that the father of the plaintiffs of the instant suit who was a defendant in the earlier money suit had appeared in that suit and took several adjournments for filing written statement but when he either on his behalf or on behalf of the minor children could not file any written statement and did not try to contest the money suit it was heard ex-parte and hence the decree passed in the money suit was legal, valid and binding upon the plaintiffs. 9. So far Execution Case No.40 of 1975 which was filed by respondent no.1 for execution of the aforesaid money suit is concerned, no doubt the appellants had produced Ext.3, which is a certified copy of register of application for execution of the decree in the court of Munsif, Banka as well as Ext.4 which is the certified copy of order passed in Execution Case No.24 of 1974 showing that the said execution case was - 5 - dismissed for default on 3.7.1974, but the subsequent order sheets of the said execution case namely Ext.C, Ext.D and Ext.E fully showed that the said execution case had continued thereafter and in execution of the said decree the suit land was sold and was purchased by respondent no.1 through the process of the court on 15.11.1975 whereafter a certificate of delivery of possession was also granted by the court in favour of respondent no.1. 10. It is also apparent from the records that both the plaintiffs of the instant suit were parties defendants in the earlier money suit and hence the said decree of the money suit cannot be held to be illegal or invalid due to non impleadment of any of them. So far the execution case is concerned, it is also apparent that none of the defendants came forward to satisfy the decree in the money suit and hence the learned executing court had no option but to sell the suit land in satisfaction of the money decree which was done in accordance with law. Further more the judgments and - 6 - N.H./ decree passed in the money suit against the defendants of that suit including the plaintiffs of the instant suit having not been found to be illegal, invalid or improper on any count, the sale by the court in execution of the said decree cannot be held to be illegal or unjust. 11. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in the instant second appeal which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. ( S.N. Hussain,J.)