JUDGEMENT
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(1.)The short question that falls for determination of this Court in this suo motu review petition is whether application under Section 4 of the Partition act can be pressed into service in execution proceedings arising out of a final decree for partition by one of the co-owners of a dwelling house belonging to an undivided family against a stranger-purchaser of the share therein belonging to another erstwhile co-owner of the said dwelling house. This court in a detailed judgment in which one of us was a party (Majmudar, J. ) was pleased to observe on 18-9-1996 to the following effect:
"That leaves out the question as to what final order should be passed in these proceedings. As we have upheld the applicability of Section 4 to the present proceedings the application filed by Respondent 1 is held maintainable and is required to be processed further. At this stage, on the aforesaid conclusion which we have reached, it would be necessary, as directed by the High Court, to remand the proceedings under Section 4 of the Act for being processed further. However, as the proceedings are very old and are lingering on since so many years in the Court, learned counsel for the respondents fairly suggested with a view to putting an end to this litigation that Respondent 1 who had moved the application under Section 4 of the Act in 1986, is prepared to pay Rs four lakhs to the appellant in full and final satisfaction of his claim as a donee of the share belonging to Smt Radha Rani. This amount was offered in the light of the valuation of the share of the appellant in the dwelling house as on 12-12-1986 when that application was moved. This offer was made by learned counsel for the respondents in consultation with Respondent 1 who was present in the Court. Dr Ghosh, learned Senior Counsel for the appellant was also agreeable to the said course being adopted. In our view this is a fair stand taken by both the parties to put an end to this litigation which was triggered off as early as on 5-9-1960. It is high time that it reaches its final terminus at least after 36 years. We, therefore, grant application of Respondent 1 under Section 4 of the Partition Act and direct him to pay Rs four lakhs to the appellant in full and final satisfaction of his claim and on payment of Rs four lakhs by Respondent 1 to the appellant, the appellant shall convey his right, title and interest in the suit house to Respondent 1 as per Section 4 of the Partition Act. Rupees four lakhs shall be paid by Respondent 1 to the appellant by instalments as under:rupees two lakhs will be paid by Respondent 1 to the appellant on or before 31/12/1996.
(2.)The balance of rupees two lakhs shall be paid by Respondent 1 to the appellant on or before 31/3/1997.
It is further directed that in case of default of any of these instalments, the amount remaining due on such default shall become payable by Respondent 1 to the appellant with 18% interest thereon from the date of this judgment till the payment of such defaulted amount. On payment of the aforesaid amount of Rs four lakhs and also subject to payment of interest on the requisite amount, in case of default, if any, as aforesaid, the right, title and interest of the appellant in the suit dwelling house shall stand transferred in full ownership of Respondent 1, the applicant of Section 4 of the Act and such share shall be treated to have been sold by the appellant to Respondent 1. On receipt of the aforesaid sale consideration, the appellant shall also execute necessary sale document in favour of Respondent 1. The cost of registration of such sale document shall be borne by Respondent 1. Thereupon, the application for execution moved by the appellant shall be treated as closed and the decretal claim of the appellant qua the judgment-debtors will be treated as fully satisfied. It is further directed that the parties concerned shall not alienate or encumber in any manner their respective shares in the joint family dwelling house till the present order is fully complied with. The parties concerned are directed to carry out the aforesaid directions punctually. The appeal is accordingly disposed of with no order as to costs in the facts and circumstances of the case. "
(3.)Subsequently, however, in the review proceedings an affidavit was filed recording therein that the suggestion to put a sum of Rs four lakhs as recorded in the order cannot be termed to be a consent order since the real valuation of the building is in no way comparable to the astronomical figure stated to have been agreed in court. In order, however, to avoid any further complication and difficulties in the matter, this Court by an order dated 12/7/1999 directed the parties to appear before this Court in person and it is in this context on 24/8/1999 this Court passed the following order:
"Upon hearing submissions made on behalf of learned counsel for the petitioner and Respondent 1 party-in-person, we deem it fit to call for a report from the 2nd Subordinate Judge, Howrah as regards the valuation of the premises in question. The 2nd Subordinate Judge, howrah shall give an opportunity of hearing to the parties and will permit them to adduce evidence, documentary or otherwise, in connection with the valuation of the premises in question. Be it noted that the valuation shall be on the date of application under Section 4 of the Act i. e. 12/12/1986 and not of any other date. It is clarified that no objection in regard to valuation will be entertained and the valuation as on 12/12/1986 may be offered by way of a report to this Court on or before 22/11/1999. The report on valuation to be submitted by 2nd Subordinate Judge, Howrah, shall be final and binding on the parties so far as Section 4 application is concerned. Let this matter be placed for further orders before this Bench on 30/11/1999. To be treated as part-heard. "
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