BHANUMATI TOPPO Vs. SHANKAR PRASAD PANDEY

JUDGEMENT

(1.) This petition under Section 115, Civil Procedure Code is filed by one Mst. Bhanumati Toppo challenging the order of the Munsif, Sambalpur in Execution Case No. 1 of 1975 rejecting her application for stay of further proceedings of the said case till her right, title and interest in the disputed property is determined. The property in question is the house bearing holding No. 774 in ward No. 8 in Jharsuguda town.

(2.) SANKAR Prasad Pandey (opposite party No. 1) initiated a proceeding under the Orissa House Rent Control Act, (H. R. C. Case No. 46 of 1972) for eviction of the tenant, Miss. P. Tigge (Opposite Party No. 2) from the suit house. The application did not succeed before the House Rent Controller, but in appeal (H. R. C. Appeal No. 2/74) the petition was accepted on 10.10.1974 and the tenant was directed to vacate the disputed premises and hand over vacant possession of the same to the landlord by the end of November, 1974. The tenant (Opposite Party No. 2) tried to assail the said order in a writ petition before this Court (O. J. C. No. 1179/74) but did not succeed. However, this Court while dismissing the writ petition allowed the tenant to remain in the house till 31.3.1977. In accordance with this direction the tenant vacated the disputed house and filed a memorandum in the execution case which had been initiated by the decree -holder -landlord in 1975, during the pendency of the writ petition. Thereafter, the petitioner who was not a party to the proceeding under the House Rent Control Act has filed this application to stall any attempt by the decree -holder to evict her from the suit house by taking recourse to provisions of Order 21, Rule 35, C. P. C. She prayed for stay of further proceedings of the execution case till the decree -holder gets some order from the competent Court to evict her from the suit premises. In the application she alleged inter alia that she has been in possession of the suit premises in her own right for several years and she is not bound by the order for eviction passed in the proceeding under the Act against opposite party No. 2.

(3.) BEFORE considering the case on merits, it will be convenient to quote the provisions of Order 21, Rule 35, C. P. C., which has been referred to by the parties. ''35. Decree for immovable property :