IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1582 of 2007 JANARDAN SINGH Versus UMESH PRASAD SINGH & ORS ----------- 03. 06.05.2008 Heard learned counsel for the petitioner. This petition is being finally heard at this stage at the instance of petitioner. This civil revision has been filed on behalf of defendant 1st party-petitioner challenging order dated 18.05.2007 passed in Title Suit No.130 of 1995 by which the learned Additional Munsif –IV, Begusarai, disposed of his petition holding that issue raised by the defendant-petitioner will be decided along with other issues at the time of final judgment itself. The aforesaid suit was filed by the plaintiff for declaring the auction sale in earlier cases as illegal and for setting aside the same and restoration of possession on the ground that the plaintiff and his brother were minors when the auction sale was done and valuable properties had been fraudulently auction sold. The defendant-petitioner appeared in the suit and contested the claim of the plaintiff on various grounds. Subsequently on 26.05.2006 defendant 1st party-petitioner filed a petition under Order XIV Rule 2 and Order VII Rule 11 of the Code of Civil Procedure claiming that the question of res judicata and the question of maintainability of the suit be decided as preliminary issue. The learned court below considered the matter in detail and found that the present plaintiff was not party in the earlier money suit as well as in the earlier - 2 - execution case by which the defendant 1st party-petitioner is said to acquire title over the suit land through auction sale. It was also found that so far the other issues raised by defendant 1st party- petitioner are concerned the contention of the plaintiff shows that questions of law and facts both are involved for deciding the said issue of maintainability which requires evidence both oral and documentary and as such the said preliminary issue cannot be decided at this stage. Hence, the learned court below found it to be justified that the said issue be decided along with other issues, which have already been framed at the time of final disposal of the suit. In addition to the aforesaid fact, it has to be noted that the said suit was filed in the year 1995 whereafter the defendant 1st party- petitioner appeared in the suit but he filed the said petition under Order XIV Rule 2 read with Order VII Rule 11 of the Code of Civil Procedure after about eleven years on 26.05.2006. In the aforesaid facts and circumstances, this court does not find any illegality or jurisdictional error in the impugned order of the learned court below and accordingly, this civil revision is dismissed. However, the learned court below is directed to expedite the hearing of the suit and to consider the aforesaid issues raised by defendant 1st party-petitioner along with other issues at the time of final disposal of the suit. harish (S.N. Hussain, J.)