IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.194 of 2008 Tirpit & Anr Versus Badri Mian & Ors ----------- 08. 29.11.2011 Heard the learned counsel appearing on behalf of the appellants as well as the respondents. 1. The Title Suit No.66/1985 has been filed for declaration that the final decree passed in the earlier T.S.No. 46/74 against the plaintiffs is illegal and without jurisdiction and not binding on the plaintiffs with further relief for confirmation of possession over the lands mentioned in Schedule II as well as Schedule III, III(a) and III(b) of the plaint. The plaintiffs have also sought relief for fresh partition of the lands mentioned in Schedule I of the plaint with consequential prayer for permanently restraining the defendants from proceeding with the Execution Case No. 01/82. 2. The trial court after considering the pleadings, evidence and submissions of the parties decreed the suit in part holding that the final decree passed in T.S.No.46/74 in respect of Schedule II land was not binding upon the plaintiffs and further holding that the 2 plaintiffs are not entitled to the relief for partition in Schedule I land. It has been held that the plaintiff Ist Set has title and possession over Schedule II land. 3. Against the aforesaid judgment and decree of the trial court, both the plaintiffs and the defendants filed T.A.No.07/1994 and T.A.No. 08/94 respectively and both the appeals have been heard together and have been decided by the impugned judgment and decree. 4. The appellate court below, in view of the rival contentions of the parties has formulated the points for determination which included the issue of the maintainability of the suit and the bar of res judicata besides the entitlement of the plaintiff for decree for fresh partition of Schedule I land and the validity of the final decree passed in T.S.No. 46/1974 with respect to the land mentioned in Schedule II of the plaint. On perusal of the evidence on record, the appellate court below has come to the finding that the suit was barred by the principle of res judicata with regard to the relief of the plaintiff for partition of Schedule I land and their entitlement for recovery of possession of Schedule II land. It has been further held that the relief regarding the final decree 3 cannot be granted to the plaintiff in view of bar contained under Section 47 of the C.P.C. and the remedy of the plaintiff was to raise the objection during the final decree proceeding or in execution proceeding itself or by filing an appeal against the final decree. On the basis of these findings, the judgment and decree of the court below has been reversed. 5. The present appellants who were respondents in T.A.No.08/94 have assailed the judgment and decree passed therein in this second appeal and it has been submitted on their behalf by the learned counsel that the appellate court has committed error of law in holding that the suit was not maintainable for declaration that the final decree with regard to Schedule II land was illegal and not binding upon the plaintiff. It has been urged that the final decree in T.S.No. 46/74 has been clearly prepared against the preliminary decree and therefore, the same can be assailed by filing a fresh suit and the bar of Section 47 will not be attracted. The learned counsel has contended that the final decree has been clearly obtained by practicing fraud on the Court by including Schedule II property in the share of the defendants even against the terms of the 4 preliminary decree and as such the same is void ab initio and non est in the eyes of law. The reliance has been placed by the learned counsel upon a decision of the Apex Court in (Ramchandra Singh Vs. Savitry Devi ) 2003 (4)PLJR 2008(SC) in support of his submissions. 6. After perusing the judgment of the appellate court below and considering the submissions on behalf of the appellants, it is clear that the final decree in T.S.No. 46/74 with regard to lands mentioned in Schedule II of the plaint has been prepared against the terms of the preliminary decree but such an illegality will only make the final decree non-executable to that extent. The Executing Court is clearly competent to look into such objection and consider the executability of the final decree by virtue of the powers under Section 47 C.P.C. Simultaneously, however, this provision also bars a suit between the parties for the same relief. If the final decree has been prepared against the terms of the preliminary decree the Executing Court can very well declare the same to be unexecutable. The appellate court has rightly decided this question and has rightly held that the provision of Section 47 C.P.C. bars the maintainability of the suit for 5 such relief. 7. There is no substantial question of law arising for consideration in this second appeal, which is, accordingly, dismissed. Nitesh ( V. Nath, J.)