Savita Devi & Ors. v. Yugal Kishore Sah

For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER (Per: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO) 3

22.02.2012 I have already heard the learned counsel, Mr. Arun Kumar Rai on behalf of the petitioners and the learned counsel, Mr. M.P.Sinha on behalf of the respondent. The objectors-petitioners have filed this application under Article 227 of the Constitution of India against the order dated 07.01.2012 passed by Sub Judge II, Saran at Chapra in Execution Case No.1 of 2005 whereby the application filed by the petitioners under Order 21 Rule 97 C.P.C. has been rejected by the court below. The learned counsel for the petitioners submitted that 2 Patna High Court CWJC No.1691 of 2012 (3) dt.28-01-2012 the petitioners were not party in Title Suit No.143 of 1971 and, therefore, the decree holder cannot evict the present petitioners from their house. The decree holder, respondent obtained the said decree in Title Suit No.143 of 1971 fraudulently. In fact, the suit property for which execution case has been filed for obtaining delivery of possession is a public road. The learned court below without giving opportunity the present petitioners passed the order and rejected the application under Order 21 Rule 97 illegally. On the contrary, the learned counsel appearing on behalf of the respondent submitted that the judgment debtors and State of Bihar fought the case upto the Apex Court and lost the same. The decree for declaration of title and recovery of possession remained intact upto the Supreme Court. To execute the said decree, the decree holder filed the execution case and the delivery of possession is to be affected on plot no.2802 and the shop premises of the petitioners is not on the said plot but they are only creating disturbances in obtaining delivery of possession. Earlier also, the decree holder filed a frivolous objection under Section 47 of the C.P.C. and prayed for appointment of Pleader Commissioner on the ground that at the spot the suit property is not identifiable which was rejected by 3 Patna High Court CWJC No.1691 of 2012 (3) dt.28-01-2012 the court below and the writ application filed by them was also rejected by the High Court. After rejection of the writ application, these persons have been set up and now these persons have started third inning in the suit and now creating disturbances by filing frivolous objection to the delivery of possession which has already been confirmed upto the Supreme Court and moreover, the point which has been raised by the petitioners have already been decided by the trial court in the judgment and it was found that the suit plot is not the public road. It has been converted to homestead land. The same question again cannot be decided in a proceeding under Order 21 Rule 97 C.P.C. and moreover, the petitioners themselves are not claiming any title or interest in the suit property nor they are the representatives of the locality. The objection raised by the petitioners is only for the sake of creating disturbances and delaying the delivery of possession and they have unnecessarily dragged the petitioners to the High Court and thereby delayed the proceeding of execution case causing mental harassment as well as monetary loss to the decree holder, respondent. Admittedly, title suit was filed by the decree holder with respect to plot no.2802. The suit was decreed upto the Supreme Court. In the said suit filed by the decree holder for 4 Patna High Court CWJC No.1691 of 2012 (3) dt.28-01-2012 declaration of title and recovery of possession, the State was party. The judgment of the trial court was challenged by the State of Bihar by filing First Appeal which was dismissed. The Second Appeal was filed by the other petitioners, Hari Shankar Prasad and others claiming that the property is the public road. The appeal was also dismissed. They filed special leave application before the Hon’ble Supreme Court which was also dismissed. Thereafter, the decree holder filed Execution Case No.1 of 2005. This is the first inning of the case. In the execution case, the said persons, Hari Shankar Prasad and others filed objection under Section 47 which was also dismissed. They filed Civil Revision No.2189 of 2005 before the High Court which was dismissed on 05.03.2008. Against the said order, they again filed special leave application before the Apex Court being S.L.P. No.13759 of 2008 which was again dismissed on 08.07.2008. It may be mentioned here that the special leave application against the second appellate judgment and decree was dismissed by the Apex Court on 25.08.2010. This is the second inning of the case. During this long period i.e. from 1971 upto 2010, these petitioners were nowhere in picture. For the first time, they filed this present application after about 40 years and are raising the same ground that the 5 Patna High Court CWJC No.1691 of 2012 (3) dt.28-01-2012 property is public road. It is admitted fact that the petitioners never claimed any right, title or interest in the suit property i.e. plot no.2802. This question is required to be considered under the provision of Order 21 Rule 97 read with Rule 101 of the C.P.C. When the petitioners are not claiming any right, title or interest in the property, there is no question of deciding the said question arises in the objection. According to the petitioners themselves, their shop premises situate in plot no.231. The delivery of possession is to be affected on plot no.2802 only. The learned court below in the impugned order has considered all these aspect of the matter and held that this application has got no merit and the petitioners have filed this application with a view to delay the delivery of possession. In view of the above facts and circumstances of the case, it appears that the question which has already been decided between the parties in the title suit of the year 1971 wherein the State of Bihar representing the public at large was party is being sought to be raised by these petitioners after more than 40 years. In my opinion, therefore, the same question cannot be decided again at the instance of third party who is not claiming any right, title or interest on the suit plot. In my opinion, therefore, the learned court below has rightly rejected 6 Patna High Court CWJC No.1691 of 2012 (3) dt.28-01-2012 the application. The same cannot be interfered with in supervisory jurisdiction under Article 227 of the Constitution of India. In view of my above discussion, this writ application is dismissed with cost of Rs.10,000 to be paid by the petitioners to the respondent within one month failing which the respondent is at liberty to realize the said amount through the process of law. Saurabh/- (Mungeshwar Sahoo, J.)