CIVIL REVISION No.1520 OF 1997 ----- Smt. Savitri Devi, wife of Sri Shyam Narayan Mishra, resident of Village- Karariya, P.S.-Govindganj, District-East Champaran. -- Plaintiff-Petitioner. Versus 1. Ashok Pandey 2. Kishore Pandey 3. Ajit Pandey All sons of Sri Arun Prakash Pandey 4. Smt. Chameli Pandey wife of Sri Arun Prakash Pandey 5. Sangita Devi alias Sangita Pandey, daughter of Sri Arun Prakash Pandey All residents of Village-Raghunathpur, P.S.-Turkaulia, District-East Champaran. 6. Smt. Sant Kumari Devi, daughter of Late Ugam Pandey and wife of Sri Niwas Pandey. 7. Smt. Saraswati Kuer, wife of Late Krishna Kant Upadhyay, daughter of Late Ugam Pandey All presently residents of Village-Raghunathpur, P.S.-Turkaulia, District- East Champaran. -Defendants-Opposite parties. 8. Ram Chandra Singh, son of Late Ram Ayodhya Singh, resident of Village- Turkaulia, Tola-Mathawa, P.S.- Turkaulia, District- East Champaran. - Intervenor-Opposite Party. ---- For the petitioner : M/s Uma Kant Shukla, Advocate. For the opposite parties : M/s Pandit Jee Pandey & Navanit Kumar Tiwari, No. 2, 3, 5 & 6 Advocates. For opposite party no.8 : Mr. S.K.Verma, Senior Advocate, M/s Raghav Prasad & Jitendra Kishore Verma, Advocates. ---- With Civil Review No.245 of 1998. ---- Ram Chandra Singh S/o Late Ram Ayodhya Singh, resident of village-Turkaulia Tola Mathwa, P.S. Tulkaulia, District- East Champaran. -- Petitioner. Versus 1. Arun Prakash Pandey S/o Late Ugam Pandey 2. Smt. Chameli Pandey wife of Arun Prakash Pandey 3. Ashok Pandey 4. Kishore Pandey Both sons of Arun Prakash Pandey 5. Sangita Pandey 6. Ajit Pandey O.P.Nos.5 and 6 are minor son & daughter of Arun Prakash Pandey under guardianship of their father Arun Prakash Pandey, All resident of Village-Raghunathpur, P.S.Turkaulia, District-East Champaran. --Defendants-Appellants-Opposite Party 1st Party. - 2 - 7. State Bank of India at Motihari through R.B.Pandey, Branch Manager, ADB Branch Motihari, District-East Champaran. -- Plaintiff-Respondents-Opposite 2nd Party. 8.(a) Manoj Pandey @ Jhablu Pandey 8(b) Manish Pandey 8.(c) Mukesh @ Mukri Pandey Resident of Furishtpur, P.S. Bairiya, Engineering College, P.S. Motihari Muffassil, District-East Champaran. 9. Sri Takeshwar Mishra son of Late Sri Digambar Mishra, Resident of Mohalla-Gopalpur, P.S.Motihari Town, District-East Champaran. 10. Smt. Savitri Devi wife of Sri Shyam Narayan Mishra 11. Smt. Sant Kumari Devi daughter of Late Ugan Pandey 12. Smt. Sarswati Devi D/O Ugam Pandey O.P.Nos. 10 to 12 are residents of Village-Kararia P.S.-Govindganj, District-East Champaran. -Defendants-Respondents-Opposite 3rd Party. ----- For the petitioner : Mr. S.K.Verma, Senior Advocate Mr. Raghav Prasad, Advocate For opposite parties : Uma Kant Shukla & Pandit Jee Pandey, Advocates. ----- P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN ----- S.N.Hussain, J. The first case is Civil Revision No.1520 of 1997 which is filed by Smt. Savitri Devi, one of the sisters of Arun Prakash Pandey, against order dated 30.07.1997 by which the learned Subordinate Judge VI, Motihari (East Champaran) allowed the application of intervenor Ram Chandra Singh and held that the preliminary decree dated 19.07.1978 passed in Partition Suit No.17 of 1976 was collusive and fraudulent and accordingly dropped the proceeding of final decree in Partition Suit bearing F.D.No.17 of 1976. The said civil revision was earlier allowed by a Bench of this court vide order dated 10.12.1998 setting aside the impugned order of the trial court. The intervenor Ram Chandra Singh challenged the said order of this court in S.L.P.(Civil) 6535 of 1999 (Civil Appeal No.8216 of 2003) which was allowed by the Hon‟ble Apex Court by a common order dated 09.10.2003 setting aside the aforesaid order passed by the High Court and remitting it for fresh consideration in accordance with the observations made in the said order. - 3 - 2. The second case is Civil Review No.245 of 1998 which is filed by Ram Chandra Singh ( not a party in the First Appeal No. 450 of 1981) for review of order dated 22.05.1998 by which a Bench of this court dismissed the said F.A.No.450 of 1981 with modification on the basis of compromise between the appellants Arun Prakash Pandey and others and the respondents State Bank of India and others with respect to the impugned judgment and decree dated 22.06.1981 of the trial court, namely 5th Additional Subordinate Judge, East Champaran, decreeing Mortgage Suit No.88 of 1977 (09/1980) filed by the State Bank of India for a preliminary decree under Order XXXIV Rule 4 of the Code of Civil Procedure (hereinafter referred to as „the Code‟ for the sake of brevity). The said Civil Review No.245 of 1998 was earlier dismissed by a Bench of this court vide order dated 10.05.1999 which was challenged by Ram Chandra Singh in S.L.P. (Civil) No.20273 of 2000 (Civil Appeal No.8217 of 2003) which was allowed by the Hon‟ble Apex Court by a common order dated 09.10.2003 setting aside the aforesaid order passed by the High Court and remitting it for fresh consideration in accordance with the observations made in the said order. 3. In view of the specific order of the Hon‟ble Apex Court dated 09.10.2003, which is reported in 2003(4) PLJR 208(SC), by which earlier orders passed in both the cases, namely C.R.No.1520 of 1997 and Civil Review No.245 of 1998, were set aside directing this court to consider them afresh in the light of observations made by the Hon‟ble Apex Court which were common to both the cases, the said two cases have been heard together by this court and are being disposed of by this common judgment. 4. The aforesaid Mortgage Suit No.88 of 1977 was filed by State Bank of India against Arun Prakash Pandey and other members of his family for a preliminary decree of Rs.1,15,312.32 paise and interest pendentelite and future besides the cost of the suit etc. under the provision of Order XXXIV Rule 4 of the Code on the basis of a registered mortgage bond dated 17.06.1970 executed by - 4 - defendant no.1 and 2, namely Arun Prakash Pandey and his wife in favour of the plaintiff-Bank. In the said suit, defendants no.3 to 6 were the children of defendant nos.1 and 2, whereas defendants no.7 and 8 were the guarantors of the said loan and defendants no.10 to 12 were the sisters of defendant no.1 who intervened in the suit later. Defendants no.1 and 2 contested the said suit and their children defendants no.3 to 6 adopted the pleadings of their parents, whereas defendants no.10 to 12 filed a separate written statement, but it was substantially the same claiming to have six annas share jointly in the mortgaged property. 5. In view of the pleadings of the respective parties, the learned trial court formulated the following issues:- (i) Whether the suit as framed is maintainable? (ii) Whether the plaintiff has got valid cause of action or right to sue? (iii) Whether defendants 10 to 12 were members of a joint Hindu Family in the year 1970, of which defendant no.1 was the karta? (iv) Whether the plaintiff is entitled to a decree of mortgage amount as claimed? (v) Whether the plaintiff is entitled to any other relief? 6. On the aforesaid issues, evidence were led and arguments were made on behalf of the parties concerned, whereafter the learned 5th Additional Subordinate Judge, East Champaran, decreed the suit on contest with cost vide his judgment and decree dated 22.06.1981 after arriving at the following findings:- (a) The plaintiff (State Bank of India) has fully proved his case of mortgage against the defendants regarding the claimed amount due against them. (b) The mortgage in question does not affect the interest of defendants no.10 to 12 (sisters of defendant no.1) in the mortgaged properties. (c) The plaintiff has got a cause of action to bring the suit as he is entitled to recover the claimed amount from defendants no.1 to 9. 7. Against the aforesaid judgment and decree of the trial court, defendants no.1 to 6, namely Arun Prakash Pandey and the members of his family - 5 - filed F.A.No.450 of 1981 in which his sisters as well as the State Bank of India were impleaded as respondents. The said first appeal remained pending till 1998. 8. In the meantime, after the preparation of the aforesaid preliminary decree dated 22.06.1981 in Mortgage Suit No.88 of 1977, final decree was also prepared by the trial court on 04.08.1982 at the instance of the plaintiff-State Bank of India. Thereafter Execution Case No.65 of 1987 for recovery of the decretal amount was also filed by the plaintiff-decree holder. However, since defendants no.1 to 9-judgment debtors failed to deposit the decretal amount, thirty acres of land out of the total suit land measuring about 95 acres of land were auction sold by the executing court on 07.06.1988 and it was auction purchased by Ram Chandra Singh (review petitioner), who was not a party either in the suit or in the execution case, for Rs.1,61,698.53 paise through the court, whereafter he deposited the said amount in the executing court on 08.06.1988. 9. Immediately thereafter on 07.07.1988, defendants no.10 to 12, the sisters of defendant no.1 filed Miscellaneous Case no.11 of 1988 in Execution Case No.65 of 1987, claiming a share in the suit property as per an earlier decree of partition dated 19.07.1978 in Partition Suit No.17 of 1976 filed by Savitri Devi claiming 2 annas share against her brother Arun Prakash Pandey and her two sisters. An application was filed in the said Miscellaneous Case by defendant nos. 10 to 12 for stay of confirmation of sale till the disposal of the said miscellaneous case. However, the said application for stay was dismissed by the executing court on 26.07.1988 and the auction sale was confirmed. Subsequently vide order dated 22.08.1988, the executing court permitted the plaintiff-decree holder, namely the State Bank of India to withdraw the amount deposited by the purchaser Ram Chandra Singh. 10. Against the aforesaid interim order dated 26.07.1988, defendants no.10 to 12, namely the sisters of defendant no.1 filed Civil Revision No.1555 of 1988 which was admitted by a Bench of this court and delivery of possession in - 6 - the execution case was stayed vide order dated 25.08.1988, but subsequently the said civil revision was dismissed by this court vide order dated 30.10.1990 as the auction sale had already been confirmed by the executing court. 11. In the meantime, the learned executing court finally dismissed Miscellaneous Case No.11 of 1988 itself on merits vide order dated 27.08.1988. Against the said order, defendants no.10 to 12 filed Civil Revision No.1700 of 1990, but during the pendency of the said civil revision, the executing court signed the sale certificate and issued a writ of delivery of possession on 10.12.1990, whereafter delivery of possession with respect to his purchased land was effected on 11.12.1990 by the executing court in favour of the purchaser Ram Chandra Singh (review petitioner). 12. The aforesaid Civil Revision No.1700 of 1990 filed by defendants no.10 to 12 was allowed by a Bench of this court vide order dated 21.05.1992 after finding that merely on the basis of preliminary decree of partition dated 19.07.1978 passed in Partition Suit No.17 of 1976 there was no actual partition of suit land by metes and bounds between Arun Prakash Pandey and his sisters, who had six annas share jointly and without actual partition by metes and bounds by takhtabandi and final decree, no part of the property can be said to be exclusively belonging to Arun Prakash Pandey and furthermore since the total land of the family was more than 95 acres the land involved in the mortgage suit measuring 30 acres was well within the share of Arun Prakash Pandey, but even assuming that the auction sale by the executing court will be valid to the extent of the share of Arun Prakash Pandey, the auction purchaser cannot be put in possession over his auction purchased land and his only remedy was either to seek a partition for carving out a separate area from the share of Arun Prakash Pandey or to file an application in the final decree proceeding of the partition suit for including the area purchased by him in the Takhta of Arun Prakash Pandey. It was also found that the learned executing court had wrongly dismissed Miscellaneous Case - 7 - No.11 of 1988 filed by defendants no.10 to 12 on the ground that the purchased area of land was less than the share of Arun Prakash Pandey which was neither correct on facts, nor such ground was permissible for dismissal of the case. It was also found that the learned executing court was not justified in putting the specific area of land on auction sale treating it to be in the exclusive share of Arun Prakash Pandey. Accordingly, the auction sale and the subsequent proceeding including the proceeding of delivery of possession were set aside. 13. Against the aforesaid order of the High Court dated 21.05.1992, passed in C.R.No.1700 of 1990 the State Bank of India filed SLP No.10800 of 1992 which was dismissed on merits by the Hon‟ble Supreme Court vide its order dated 29.03.1993. The auction purchaser, namely Ram Chandra Singh also challenged the aforesaid order of this court dated 21.05.1992 vide SLP No.8119 of 1992 which was disposed of as withdrawn by the Hon‟ble Supreme Court vide its order dated 25.06.1992 as follows:- “Learned counsel for the petitioner withdraws this petition to cash upon the order impugned against. Special Leave Petition is disposed of as withdrawn.” 14. In the said circumstances, it is quite apparent that this court vide its order dated 21.05.1992 passed in Civil Revision No.1700 of 1990 set aside the auction sale and the subsequent proceeding, including delivery of possession passed in Execution Case No.65 of 1987 and the said order of this court was twice affirmed by the Hon‟ble Apex Court in two SLPs, one filed by the plaintiff-State Bank of India and the other filed by the auction purchaser Ram Chandra Singh which were both dismissed by the Hon‟ble Apex Court. In the said circumstances, the only option left for the auction purchaser, namely Ram Chandra Singh to follow the directions given by this court in the said order by way of seeking a partition by filing a separate suit for carving out a separate area from the share of Arun Prakash Pandey or by filing an application in the final decree proceeding of Partition Suit No.17 of 1976 for including the area - 8 - purchased by him in the Takhta of Arun Prakash Pandey, but the said auction purchaser did not take any such step as mentioned above. 15. However, after about two years of the order of the Hon‟ble Apex Court dated 25.06.1992 the said Ram Chandra Singh filed a separate Title Suit No.04 of 1994 for setting aside the preliminary decree dated 19.07.1978 passed in Partition Suit No.17 of 1976 filed by Smt. Savitri Devi against her sole brother defendant no.1, his sons and her two sisters. The ground taken by the auction purchaser was that there was suppression of fact regarding the date of death of their father Ugam Pandey as the sisters of Arun Prakash Pandey claimed in the suit that their father Ugam Pandey had died after 1956, whereas according to the auction purchaser Ram Chandra Singh he had died in the year 1944 and hence the said sisters did not inherit any share in his property. In the said title suit, the auction purchaser also sought declaration that order of the High Court dated 21.05.1992 was obtained by fraud. In the said title suit, an application for injunction was filed by Ram Chandra Singh which was rejected by the trial court vide order dated 19.04.1994 which was challenged by him in M.A.No.190 of 1994 which was dismissed by a Bench of this court vide order dated 14.11.1994, reported in 1995 (1) PLJR 298. Ultimately the said Title Suit No.04 of 1994 filed by Ram Chandra Singh was dismissed for default on 24.05.2006, but no step was taken by the said Ram Chandra Singh against it before any court or forum. 16. During the pendency of his Title Suit No.04 of 1994 the aforesaid Ram Chandra Singh (auction purchaser) filed an application dated 06.05.1995 under Order XXVI Rules 13 and 14(2) read with Order XX Rule 18 of the Code in the final decree proceeding of Partition Suit No.17 of 1976 for declaring that preliminary decree passed in the said suit was fraudulent, collusive and nullity due to the suppression of the fact of death of Ugam Pandey in 1944, i.e. much before 1956 and hence the sister Savitri Devi who was plaintiff in Partition Suit - 9 - No.17 of 1976 and her two sisters, who were defendants, having no share in the property left by Ugam Singh, the final decree proceeding should also be dropped. 17. In the said matter, the auction purchaser Ram Chandra Singh produced several sale deeds of 1944, 1947, 1949, 1950, 1951, 1953, 1954 and 1955 executed by or in favour of Arun Prakash Pandey showing his father Ugam Pandey as dead. Finally the learned trial court vide its order dated 30.07.1997 allowed the application of Ram Chandra Singh holding that Ugam Pandey died in the year 1944 much before coming into force of the Hindu Succession Act, 1956 and hence his daughters, who were married, did not inherit anything out of his property which devolved upon his only son Arun Prakash Pandey. It was also held that due to the suppression of the aforesaid fact, preliminary decree of partition was passed in Partition Suit No.17 of 1976 declaring six annas share of the three daughters of Ugam Pandey and only ten annas share of his son Arun Prakash Pandey. Thus, preliminary decree dated 19.07.1978 passed in Partition Suit No.17 of 1976 was declared collusive and fraudulent and accordingly final decree proceeding was dropped. 18. Against the aforesaid order of the trial court dated 30.07.1997, Smt. Savitri Devi, one of the sisters of Arun Prakash Pandey, filed Civil Revision No.1520 of 1997 in which the auction purchaser Ram Chandra Singh was impleaded as opposite party no.9. The said civil revision was allowed by a Bench of this court vide order dated 10.12.1998 on the ground that the provision of Order XX Rule 18 or the provision of Order XXVI Rules 13 and 14(2) of the Code was not applicable for setting aside a preliminary decree or for dropping the proceeding of a final decree and the court before whom the final decree proceeding was pending had no authority to set aside the preliminary decree under the said provision on the ground of fraud or mis-representation. 19. Against the said order of this court dated 10.12.1998, the auction purchaser Ram Chandra Singh filed SLP (c) No.6535 of 1999 (Civil Appeal - 10 - No.8216 of 2003) which was allowed by the Hon‟ble Apex Court vide order dated 09.10.2003 setting aside the impugned order dated 10.12.1998 passed by the High Court and remitting the matter to this court for considering it afresh in accordance with the observations made by the Hon‟ble Supreme Court. In these circumstances, Civil Revision No.1520 of 1997 has been placed before this court for fresh consideration. 20. During the pendency of the civil revision, First Appeal No.450 of 1981 which was filed by Arun Prakash Pandey against the preliminary decree dated 22.06.1981 decreeing Mortgage Suit No.88 of 1977 (filed by the State Bank of India) was dismissed by this court vide order dated 22.5.1998 with modification in the trial court judgment and decree as per the compromise between the defendants-appellants, namely Arun Prakash Pandey and others and the plaintiff-respondent, namely State Bank of India, according to which appellants Arun Prakash Pandey and others were ready to pay the amount due under the decree to the respondent State Bank of India in two equal instalments by 31.07.1998 and 31.01.1999 by which the State Bank of India had no objection in making the said payment in two equal instalments. Hence, the said decree of the trial court was modified to the extent of instalments only. 21. The auction purchaser Ram Chandra Singh, who was neither a party to Mortgage Suit No.88 of 1977, nor was a party to F.A.No.450 of 1981, filed Civil Review No.245 of 1998 challenging the order of dismissal of F.A.No.450 of 1981 dated 22.05.1998. The said civil review was dismissed by a Bench of this court vide order dated 10.05.1999 holding that the auction sale having itself been set aside by this court vide order dated 21.05.1992 passed in Civil Revision No.1700 of 1990 the said Ram Chandra Singh had no occasion to file the review case nor there was any merit in his petition. 22. The said order of this court dated 10.05.1999 passed in Civil Review No.245 of 1998 was challenged by the aforesaid auction purchaser Ram - 11 - Chandra Singh in SLP (C) No.20273 of 2000 (Civil Appeal No.8217 of 2003) which was allowed by the Hon‟ble Apex Court vide order dated 09.10.2003 setting aside the impugned order dated 10.05.1999 passed by this court and remitting the matter to this court for considering it afresh in accordance with the observations made by the Hon‟ble Supreme Court. In these circumstances, Civil Review No.245 of 1998 has been placed before this court for fresh consideration. 23. Both the aforesaid cases bearing Civil Appeal No.8216 of 2003 as well as Civil Appeal No.8217 of 2003 were heard together and were decided by the Hon‟ble Supreme Court vide common order dated 09.10.2003, which is reported in 2003(4) P.L.J.R.208(S.C). The main points on which the matters were remitted and the civil appeals were allowed by the Hon‟ble Apex Court setting aside the order of this court dated 10.12.1998 passed in C.R.No.1520 of 1997 as well as the order dated 10.05.1999 passed in Civil Review No.245 of 1998 are as follows:- “(i) The High Court, in our opinion, committed a serious error in referring to the earlier orders passed by it so as to shut the door of justice on the face of appellant for all time to come. We are of the opinion that the impugned judgment dated 10.12.1998 in Civil Revision No.1520 of 1997 cannot be sustained.” “(ii) So far as the order dated 10.05.1999 passed in Civil Review No.245 of 1998 is concerned, suffice it to say that the High Court should have considered the question as to whether the right of the auction purchaser could have been set at naught by reason of a consent order passed in his absence. The appellant was not a party in the First Appeal. He was also not a party to the compromise.” “(iii) The consent order, as is well-known, is an agreement between the parties with the seal of the Court superadded to it. The appellant herein in the Review Application categorically stated that the parties to the appeal had suppressed the auction sale as also the confirmation thereof. The effect of the events appearing subsequent to the filing of the First Appeal resulting in creation of a third party right was bound to be taken into consideration by the High Court. A third party right cannot be set at naught by consent. The High Court, therefore, was required to consider the contention of the appellant in their proper perspective. The High Court, in our opinion, was obligated to address itself on these questions for the purpose of reviewing its order. (In this regard a decision of the Hon‟ble Apex Court in case of Dwarka Prasad Agarwal (D) LRs and Another Vs. B.D.Agarwal and others [ (2003) 6 SCC 230] has been referred.)” “(iv) It is true that pursuant to or in furtherance of the consent order, the respondents had deposited the amount and the State Government - 12 - has appropriated the same. The legal issues as regard the effect of commission of fraud on court vis-à-vis the conduct of the parties are still at large. The High Court was, therefore, required to adjust the equities between the parties. The Bank cannot also unjustly enrich itself