# Jakhoo Ram v. Santosh & Ors

- **Citation:** (2025) 6 ILRA 91
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-06-11
- **Case number:** Matters Under Article 227 No. 6055 of 2025
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jakhoo-ram-v-santosh-ors-50984
- **Pages:** 2

## Headnote

A. Civil Law - Partition suit - Preliminary
decree - Modification of shares on death of
co-sharer - Civil Procedure Code, S. 97 -
Scope of Section 97 CPC - Power of Court
to vary shares before final decree -
Pending final decree, the shares are liable
to be varied on account of intervening
events such as death of a party or change
of law, and though Section 97 CPC
provides an appeal against a preliminary
decree, the said provision would not be a
bar to file an application for amendment
of a decree. Remedy to question the
preliminary decree is under Section 97
CPC by filing appeal and not by making
any application for recalling the order.
(Para 59-61)

B. Chandi Das Basu filed Suit No. 254 of
1976 seeking partition by metes and
bounds
of
ancestral
properties.
A
preliminary decree determining the shares
of co-sharers was passed on 27.11.1979,
which was affirmed in First Appeal. For
execution, Final Decree Case No. 111 of
1980 was instituted by Chandi Das Basu.
On 20.06.1991, defendant no. 1, Ajay
Kumar Basu (brother of Chandi Das Basu)
died. On 17.02.1993 Chandi Charan Basu,
brother of Chandi Das Basu, died issueless
and intestate. On 27.03.1995, Chandi Das
Basu executed a registered agreement to
sell in favour of Tara Chandra Gupta
(present petitioner), his own share and
also the share of his deceased brother
Chandi Charan Basu. The agreement
disclosed existence of pending litigation
and preliminary decree. In the year 1997,
Chandi Das Basu died. His legal heirs filed
substitution application in Final Decree
Case No. 111/1980 on 01.07.1997, but
never pressed it. On 23.08.1997 he
executed another agreement to sell in
favour of Naseem Uddin and Safiq Ahmad,
despite the earlier 1995 agreement in
favour
of
Tara
Chandra
Gupta.
On
28.09.1998, Tara Chandra Gupta filed suit
for specific performance against heirs of
Chandi Das Basu and Naseem Uddin &
Safiq
Ahmad.
It
was
decreed
on
20.04.2010. First Appeal was dismissed on
22.10.2017; Second Appeal was dismissed
on 28.02.2020; SLP dismissed by Supreme
Court
on
14.09.2021.
Tara
Chandra
Gupta's right to obtain the sale deed
attained finality. On 25.04.2009, Amitabh
Basu, one of the sons of late Ajay Kumar
Basu (original defendant no. 1) filed
Application 65-C in Final Decree Case No.
111 of 1980 seeking variation in shares of
co-sharers after death of Chandi Charan
Basu
(who
had
died
issueless).
On
07.05.2012 Application 65-C was allowed;
preliminary
decree
modified.
On
04.02.2021 Tara Chandra Gupta filed
Application 72-C to be impleaded in Final
Decree Case No. 111 of 1980; which was
allowed on 20.07.2021. On 13.08.2021
Tara Chandra Gupta filed A

## Text

6 All. Jakhoo Ram Vs. Santosh & Ors.
91
(2025) 6 ILRA 91
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.06.2023

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Matters Under Article 227 No. 6055 of 2025

Jakhoo Ram ...Petitioner
Versus
Santosh & Ors. ...Respondent

Counsel for the Petitioner:
Sri Santosh Kr. Singh Paliwal

Counsel for the Respondent:

Civil Law - Injunction - Constitution of
India, 1950 - Article 227 - Petitioner
preferred Original Suit and in the said suit,
an interim injunction was granted -
respondents filed Misc. Appeal - appellate
Court cancelled the interim injunction but
no further direction was given to pass fresh
order on the injunction application - petition
disposed of directing the Court below
before whom the Original Suit was pending
to decide the interim injunction application
afresh
after
providing
opportunity
of
hearing to all the parties concerned (Para 5,
6).

Allowed. (E-5)

(Delivered by Hon'ble Prakash Padia, J.)

1. The petitoner is a plaintiff and
he preferred Original Suit No.1615 of
2013 in the Court of Civil Judge
(Senior Division) Azamgarh. In the
aforesaid suit, an interim injunction
was
granted
in
favour
of
the
petitioner on 21.08.2023. Aggrieved
with
the
aforesaid
order,
the
respondents had filed Misc.Appeal
No.73 of 2023.
2. It is argued by learned
counsel for the petitioner that the
appellate
Court
has
cancelled
the
interim injunction granted by the trial
Court vide order dated 9.05.2025 but no
further direction was given to the Court
before whom the matter is pending to
pass fresh order on the injunction
application and prays that the Court
before whom the matter is pending be
directed to pass fresh order on the
injunction application and the parties be
directed to maintain status quo till the
order
passed
on
the
injunction
application.

3. In view of the order proposed
to be passed herein, no useful purpose
would be served by putting the opposite
party to notice and keeping this petition
pending before this Court. However, in
case the opposite party feels aggrieved
by the order his/her right to seek
modification/variation of the order is
being kept reserved.

4. Heard learned counsel for the
petitioner and perused the record.

5. In the facts and circumstances
of the case, the present petition is
disposed of directing the Court below
before whom the Original Suit No.1615
of 2013is pending to decide the interim
injunction application afresh within a
period of two months from the date of
production of certified copy of this
order but after providing opportunity of
hearing to all the parties concerned.

6. Till 31.07.2025 or till the
decision taken on the stay application
whichever is earlier, the interim order
granted by the trial Court on 21.08.2023
will continue.
92 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2025) 6 ILRA 92
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.06.2023

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Matters Under Article 227 No. 14008 of
2024 (Civil)

Tara Chandra Gupta ...Petitioner
Versus
Dr. Shakti Basu & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhuwan Raj, Sri Shiv Om Vikram Singh
Chauhan, Sri Vishnu Gupta (Sr. Adv.), Sri
Manish Goyal (Sr. Adv.)

Counsel for the Respondents:
Sri Nitin Yasharth, Sri Yasharth, Sri V.K.
Upadhyay (Sr. Adv.)

A. Civil Law - Partition suit - Preliminary
decree - Modification of shares on death of
co-sharer - Civil Procedure Code, S. 97 -
Scope of Section 97 CPC - Power of Court
to vary shares before final decree -
Pending final decree, the shares are liable
to be varied on account of intervening
events such as death of a party or change
of law, and though Section 97 CPC
provides an appeal against a preliminary
decree, the said provision would not be a
bar to file an application for amendment
of a decree. Remedy to question the
preliminary decree is under Section 97
CPC by filing appeal and not by making
any application for recalling the order.
(Para 59-61)

B. Chandi Das Basu filed Suit No. 254 of
1976 seeking partition by metes and
bounds
of
ancestral
properties.
A
preliminary decree determining the shares
of co-sharers was passed on 27.11.1979,
which was affirmed in First Appeal. For
execution, Final Decree Case No. 111 of
1980 was instituted by Chandi Das Basu.
On 20.06.1991, defendant no. 1, Ajay
Kumar Basu (brother of Chandi Das Basu)
died. On 17.02.1993 Chandi Charan Basu,
brother of Chandi Das Basu, died issueless
and intestate. On 27.03.1995, Chandi Das
Basu executed a registered agreement to
sell in favour of Tara Chandra Gupta
(present petitioner), his own share and
also the share of his deceased brother
Chandi Charan Basu. The agreement
disclosed existence of pending litigation
and preliminary decree. In the year 1997,
Chandi Das Basu died. His legal heirs filed
substitution application in Final Decree
Case No. 111/1980 on 01.07.1997, but
never pressed it. On 23.08.1997 he
executed another agreement to sell in
favour of Naseem Uddin and Safiq Ahmad,
despite the earlier 1995 agreement in
favour
of
Tara
Chandra
Gupta.
On
28.09.1998, Tara Chandra Gupta filed suit
for specific performance against heirs of
Chandi Das Basu and Naseem Uddin &
Safiq
Ahmad.
It
was
decreed
on
20.04.2010. First Appeal was dismissed on
22.10.2017; Second Appeal was dismissed
on 28.02.2020; SLP dismissed by Supreme
Court
on
14.09.2021.
Tara
Chandra
Gupta's right to obtain the sale deed
attained finality. On 25.04.2009, Amitabh
Basu, one of the sons of late Ajay Kumar
Basu (original defendant no. 1) filed
Application 65-C in Final Decree Case No.
111 of 1980 seeking variation in shares of
co-sharers after death of Chandi Charan
Basu
(who
had
died
issueless).
On
07.05.2012 Application 65-C was allowed;
preliminary
decree
modified.
On
04.02.2021 Tara Chandra Gupta filed
Application 72-C to be impleaded in Final
Decree Case No. 111 of 1980; which was
allowed on 20.07.2021. On 13.08.2021
Tara Chandra Gupta filed Application 86-C
to
recall/set
aside
the
order
dated
07.05.2012
modifying
the
preliminary
decree. Tara Chandra Gupta argued that
order dated 07.05.2012 was ex parte,
passed without notice to all necessary
parties including heirs of Chandi Das Basu.
On
08.12.2021,
the
sale
deed
was
executed from the Executing Court in
favour of Tara Chandra Gupta in respect of