Tara Devi v. Suryamukhi Devi

counsel appearing on behalf of Respondents first set. The petitioners are aggrieved by an order dated 1.5.2010 passed by learned Munsif 2nd, Begusarai in Title Execution Case No. 2 of 2014/89 of 1997, whereby it has reviewed its earlier order dated 1.3.2008. By the order dated 1.3.2008 learned Court below had refused to reissue the writ of delivery of possession in favour of the decree-holder. The facts necessary for adjudication of the present case are short. A Title Suit No. 64 of 1978 was filed by the respondents first set, questioning the purcha granted in favour of petitioner no.1 and father of petitioner no.2, namely, Shiv Charan Pasi by the State of Bihar as a privileged person under Bihar State Privileged Persons Homestead Tenancy Act. The suit was decreed. The said Shiv Charan Pasi filed Title Suit No. 38 of 2002 for setting aside the decree on the ground that it was obtained fraudulently. The maintainability of the said suit was questioned by the Respondents first set on the principles of res-judicata. The 3 objection was, however, turned down. Civil Revision petition filed against the said order turning down the objection has been dismissed by this Court vide an order dated 2.8.2010 passed in Civil Revision No. 380 of 2008. An Execution Case being Execution case No. 2/14 of 89 of 1997 was filed in the meanwhile for executing the decree passed in Title Suit no. 64 of 1978. The Executing Court is said to have issued the delivery of possession which came to be effected on 5.2.2006. A report in this regard was also given by Nazir as regards delivery of possession. Subsequently, respondents first set filed an application for issuance of second writ of delivery of possession on the ground that they had been dispossessed on the same evening of 5.2.2006 on which date the delivery of possession was effected. The application, however, was rejected by the Court of learned Additional Munsif 1st, Begusarai by an order dated 1.3.2008. A review application was, therefore, filed by Respondents First set for review of the order dated 1.3.2008. The review application was objected to by the petitioners before the Court below. However, by the impugned order the Court below allowed the review application and after having reviewed the previous order as directed for issuance of second writ of delivery of possession. The said order has been passed by the Court below in 4 purported exercise of power under Section 114 and Order XLVII Rule 1 of the Code of Civil Procedure. Mr. J.S. Arora, learned counsel appearing on behalf of the petitioners has contended that though the Court below had the power to review its order but such power has not been exercised in accordance with law in the facts and circumstances of the case and the Court below has based its finding only on the report of Superintendent of Police, Begusarai and Circle Officer, Teghra. He submits that the impugned order dated 1.5.2010 could not have been passed in the manner it has been passed without instituting a miscellaneous case and taking evidence of the parties in accordance with law. He has referred to Rule 459 of the Civil Court Rules of the High Court of Judicature at Patna Vol. (1) to contend that an application under Order XLVII Rule 1 of the Code for review of judgment or order ought to have been registered as Misc. case. He submits that in the absence of production of evidence and opportunity to other side to counter/contradict such statement, the Court below should not have reviewed its earlier order merely by referring to report of the Superintendent of Police, Begusarai and Circle Officer, Teghra. He submits that in view of Rule 459 of the Civil Court Rules of the High Court of Judicature at Patna read with Section 141 of the Code of Civil Procedure, the 5 Court below ought to have followed the procedure provided for miscellaneous proceedings. Learned counsel appearing on behalf of the respondents first set has submitted that the Court below had the power to review its own order and since the previous order was passed in the absence of certain documents, the Court below rightly reviewed its earlier order after those documents i.e. the First Information Report, report of Circle Officer, Teghra and report of Superintendent of Police, Begusarai produced before the Court below showing that they were dispossessed from the suit property immediately after delivery of possession on 5.2.2006. Reliance has been placed as regards jurisdiction of the Court to review its order under Section 114 of the Code of Civil Procedure and order XLVII Rule 1 of the Code upon Supreme Court judgment reported in ( 2009) 14 663 ( Inder Chandra Jain ( dead) through LRS Vs. Motilal ( dead) through LRS) and ( 2005) 4 SCC 741 ( Board of Control for Cricket India and another vs. Netaji Cricket Control and others). There is not dispute over the question whether the Court below had the power of review or not. As has been submitted by Mr. J.S. Arora, even if the Court had such power it was required to exercise jurisdiction in accordance with the procedure 6 prescribed under the Code of Civil Procedure and the Civil Court Rules framed by the Patna High Court. From the impugned order it appears that the Court below passed the order in the same execution case without registering a separate Miscellaneous case. Section 459 of the Civil Court Rules contains the list of such applications which are to be registered as Miscellaneous case which includes cases under Order XLVII Rule 1 of the Code of Civil Procedure. It also includes the case under Section 47 of the Code which empowers the Executing Court to determine all the questions arising between the parties to the suit relating to execution/discharge and satisfaction of the decree. Though power of review of the Court below cannot be questioned, I am satisfied that the Court has not followed the procedure prescribed for exercising such power. The impugned order is set aside, therefore. The matter is remanded back to the Court below for consideration on the petition dated 15.4.2008 filed by respondents first set in accordance with law. This application is, accordingly, allowed. (Chakradhari Sharan Singh, J) Arun Kumar/-