Mahabir Lal v. Panna Lal Droliya

Patna High Court C.R. No.156 of 2012 (2) dt.04-01-2013

37. Jai Prakash Agrawal S/O Late Narain Prasad Resident Of Rampur Rajwa (Hasanpur) P.O. And P.S. Hasanpur, District Samastipur. 38. Gaytri Devi W/O Ramdeo Prasad Agrawal Resident Of Mohalla Pachbir, Begusarai, P.O. & P.S. Begusarai, District Begusarai. 39. Ravi Agrawal S/O Rajendra Prasad Agrawal Resident Of Mohalla Delhi Kathmandu Nepal, P.S. And District Kathmandu (Nepal). 40. Payal Agrawal W/O Shri Bilas Kumar Agrawal Resident Of Islampur, P.O. And P.S. Islampur, District Gorakhpur. 41. Bobi Agrawal W/O Ankush Agrawal Resident Of Delhi Bazar, Kathmandu, P.O. And P.S. Kathmandu, District Kathamandu Nepal. 42. Meena Devi W/O Om Prakash Jallan Resident Of Koli Koth, Goshala Road Muzaffarpur, P.S. And P.O. And District Muzaffarpur. 43. Banti Kumar S/O Gopal Prasad Makhariya Resident Of Ring Road Surat, P.S., P.O. And District Surat. 44. Ramautar Kejariwal S/O Late Mahadeo Lal Kejariwal Resident Of Teghra Bazar, P.O. And P.S. Teghra, District Begusarai. 45. Pawan Kejariwal S/O Late Mahadeo Lal Kejariwal Resident Of Teghra Bazar, P.O. And P.S. Teghra, District Begusarai. 46. Gopal Prasad Kejariwal S/O Late Mahadeo Lal Kejariwal Resident Of Teghra Bazar, P.O. And P.S. Teghra, District Begusarai. 47. Pramod Kumar Kejariwal S/O Late Mahadeo Lal Kejariwal Resident Of Teghra Bazar, P.O. And P.S. Teghra, District Begusarai. 48. Manju Devi W/Oramanand Sureka Resident Of Gola Road, Samastipur, P.O. And P.S. And District Samastipur. 49. Kushum Devi W/O Binod Kumar Adhokiya Resident Of Durga Mandir Chowk, Jhajha, P.O., P.S. And District Jhajha. 50. Santosh Devi W/Olalu Prasad Bagala Resident Of Patna City, P.O. And P.S. Patna City, District Patna. 51. Munni Devi W/O Mohan Lal Agrawal Resident Of Mohalla Saraiyaganj, Muzaffarpur, P.S. And District Muzaffarpur. 52. Bajrang Prasad S/O Late Kanhaiya Lal Resident Of Rampur Rajwa, P.S. Hasanpur, District Samastipur, At Present Residing At Marachi Ujagar, P.O. Hasanpur Sugar Mills, P.S. Hasanpur, District Samastipur. 53. Ashok Kumar S/O Late Kanhaiya Lal Resident Of Rampur Rajwa, P.S. Hasanpur, District Samastipur, At Present Residing At Marachi Ujagar, P.O. Hasanpur Sugar Mills, P.S. Hasanpur, District Samastipur. 54. Sharda Devi D/O Late Kanhaiya Lal W/O Shri Gopal Prasad Agrawal, At Present Residing In Mohalla Gola Road, Town Samastipur, P.O., P.S. And District Samastipur. P.O., 4 Patna High Court C.R. No.156 of 2012 (2) dt.04-01-2013

55. Pushapa Devi W/O Govind Prasad Agrawal Resident Of Mohalla Gola Road Samastipur, P.O., P.S. And District Samastipur. 56. Rajo Devi W/O Sheo Kumar Patoriya Resident Of Miscellaneous Stted, Surat, P.S. And District Surat. 57. Manju Devi W/O Shri Chhedi Lal Kaishan Resident Of Bank Road Rakasul, P.O., P.S. And District Raxaul. 58. Bina Devi W/O Pawan Kumar Maskara Jyoti Bastralaya, Meena Bazar, Raxaul, P.S. And District Raxaul. 59. Ashok Kumar Swaika S/O Late Banbari Lal Resident Of Hasanpur Bazar, Rampur Rajwa, P.S., P.O. Hasanpur, District Samastipur, At Present Residing In Mohalla Gullo Bara, Town Derbhanga, P.S. And P.O. Darbhanga, District Darbhanga. 60. Pawan Kumar S/O Late Banbari Lal Resident Of Hasanpur Bazar, Rampur Rajwa, P.S., P.O. Hasanpur, District Samastipur, At Present Residing In Mohalla Gullo Bara, Town Derbhanga, P.S. And P.O. Darbhanga, District Darbhanga. 61. Binod Kumar S/O Late Banbari Lal Resident Of Hasanpur Bazar, Rampur Rajwa, P.S., P.O. Hasanpur, District Samastipur, At Present Residing In Mohalla Gullo Bara, Town Derbhanga, P.S. And P.O. Darbhanga, District Darbhanga. 62. Raj Kumar Swaika S/O Late Banbari Lal Resident Of Hasanpur Bazar, Rampur Rajwa, P.S., P.O. Hasanpur, District Samastipur, At Present Residing In Mohalla Gullo Bara, Town Derbhanga, P.S. And P.O. Darbhanga, District Darbhanga. 63. Pramod Kumar Swaika S/O Late Banbari Lal Resident Of Hasanpur Bazar, Rampur Rajwa, P.S., P.O. Hasanpur, District Samastipur, At Present Residing In Mohalla Gullo Bara, Town Derbhanga, P.S. And P.O. Darbhanga, District Darbhanga. 64. Asha Devi W/O Rajiv Prasad Agrawal Resident Of Barauni, P.S. And P.O. Barauni, District Begusarai. 65. Sushil Kumar S/O Late Hanuman Prasad Resident Of Hasanpur Bazar, P.S. And P.O. Hasanpur, Distr4ict Samastipur, At Present Residing At Sakari, P.O. And P.S. Sakari, District Madhubani. 66. Govind Kumar S/O Late Hanuman Prasad Resident Of Hasanpur Bazar, P.S. And P.O. Hasanpur, Distr4ict Samastipur, At Present Residing At Sakari, P.O. And P.S. Sakari, District Madhubani. 67. Gopesh Kumar S/O Late Hanuman Prasad Resident Of Hasanpur Bazar, P.S. And P.O. Hasanpur, Distr4ict Samastipur, At Present Residing At Sakari, P.O. And P.S. Sakari, District Madhubani. 68. Sarita Devi W/O Kishun Kumar Resident Of Main Bazar Jainagar, P.S. And P.O. And District Jainagar. .... .... Respondent/s 5 Patna High Court C.R. No.156 of 2012 (2) dt.04-01-2013 ====================================================== Appearance : For the Petitioner/s : Mr. Shailendra Kumar For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL ORDER 2 04-01-2013 This application has been filed challenging the order dated 23.06.2012 by which the Execution Court has dismissed the application under Order XXI Rule 99 of the Civil Procedure Code stating therein that the execution of the decree has already been affected and as such, the petitioner has no right or claim that he should get the decree stayed by the Executing Court. Counsel for the petitioner submits that Order XXI Rule 99 of the Civil Procedure Code comes into play when a person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property. It further requires that the Court below shall adjudicate on the application in accordance with the provisions contained in the Civil Procedure Code. The petitioner along with some 18 to 24 other persons is claiming that they come from the common ancestor of Durjan Ram. It is specifically stated that Durjan Ram had three sons, namely, Shankar Lal, Ishwar Lal and Narain Prasad. The petitioner claims that he is the son of Shankar Lal. It is apparent that the applications filed by other co-sharers under Order XXI Rule 99 of the Civil Procedure Code was also 6 Patna High Court C.R. No.156 of 2012 (2) dt.04-01-2013 similarly rejected. The case of the petitioner is that two co-sharers have conspired and have got a decree in their favour without making the petitioner and others as parties, although they are co-sharers of the plaintiff and defendant, who are parties in Title Suit No. 65 of 1999. The facts in this case indicate that the petitioner is claiming as co-sharer and, therefore, he would have the remedy to file a partition suit and challenge the decree passed by the Court in Title Suit No. 65 of 1999 as he was not made party in the suit. It would not be proper to allow the petitioner to get this matter adjudicated in an application under Order XXI Rule 99 of the Civil Procedure Code. It would amount to deciding a fresh partition between the supposed co-sharers. In the result, this Court finds that although the reasoning of the Court below is misplaced, but eventually this Court also finds that on merits, it would be proper for the petitioner, if so advised, to file a fresh partition suit. This application is accordingly dismissed. (Sheema Ali Khan, J) Prabhakar Anand/-