JUGAM PRAVA MAHANTI Vs. GOLAK DAS (DEAD)

JUDGEMENT

(1.) By filing the Civil Miscellaneous Petition under Article 227 of the Constitution of India, the petitioner herein challenges the order dated 20.9.2017 passed by the Executing Court involving Execution Case No.24 of 2012 involving rejection of an application under Order 21, Rules 35, 22 and 23 read with Order 1, Rule 10 and Section 151 of the Code of Civil Procedure.

(2.) Short background involved in the case is that the Decree holder filed the Execution proceeding in respect of Hal Khata No.731 measuring an area of Ac.0.095 decimals as per the decree passed by the Appellate Court arising out of Tile Suit No.532 of 1996, a suit seeking eviction of the Defendant No.1 from the suit schedule property and declaration of right, title and interest which suit was dismissed by the trial Court. The Execution proceeding was initiated by the plaintiff, but however involving the legal heirs of the original Defendant No.1, for the death of the Defendant No.1 in the meantime. The petitioners brought their case in the Execution proceeding that during pendency of Title Suit No.532 of 1996 without informing her, Saradhamani, the decree holder agreed to sell the suit land to her regarding pendency of a suit, the petitioner herein and her son - Biswanath accordingly took an advance of Rs.35,000/-. Further fact brought by the petitioner and as reveals here is that during pendency of Title Appeal No.14 of 2001, Saradhamani, the decree holder sold the suit land in respect of 1/3rd share of her to the petitioner on 30.12.2002 by executing registered sale deed wherein Biswanath, her son who took advance, is also a witness. Petitioner though demanded for return of money for involvement of the property in suit, but taking the pleas of pendency of the litigation, Saradhamani went on assuring the petitioner for delivery of possession on getting the decree involving the suit. It further reveals that in the meantime, the decree holder initiated execution proceeding registered as Execution Case No.24 of 2012 at the instance of Saradhamani Devi in which Saradhamani Devi, the decree holder having expired on 26.12.2016 and the right to execute the decree against the judgment debtors since continues, the petitioner being purchaser of the disputed property having a right to be arrayed as a decree holder filed a petition for substitution disclosing therein the facts necessitating impleading the petitioner as a party to the execution proceeding. For the reasons indicated therein, the present petitioner prayed the executing court for allowing her to be impleaded as the substituted plaintiff and to permit her to continue with the execution proceeding. This application having been considered and rejected, the petitioner brought the Civil Miscellaneous Petition herein considered.

(3.) Assailing the order of rejection of the application of the petitioner for her impleadement in the execution proceeding, Sri A.K.Parija, learned senior counsel, appearing for the petitioner taking to the factual background involved therein, submitted that the petitioner being a lispendent purchaser of the property involved herein from Saradhamani Devi, the plaintiff in Civil Suit No.532 of 1996 having agreed to sale the disputed property and having received advance through her son and further during pendency of Title Appeal No.14 of 2001, Saradhamani Devi, the plaintiff sold the suit land in respect of 1/3rd share to her on 30.12.2002 by virtue of a Registered Sale Deed wherein her son is a witness and the request of the petitioner for returning of money on coming to know about the pendency of the suit and filing of appeal thereafter and the execution proceeding having been initiated concerning the judgment and decree involving the disputed property on the death of the decree holder Saradhamani Devi, the petitioner being lispendent purchaser of the property became a necessary party, Sri A.K.Parija, learned senior counsel also urged before this Court that unless the petitioner is added as a party to the execution proceeding in the fact of demise of the plaintiff, the decree holder in the meantime and for the involvement of the petitioner in the purchase of the disputed property involved herein, the petitioner has not only a right to continue with the execution proceeding but any decision in absence of them the situation will yield with multiplicity of litigation. Referring to a judgment of this Court involving Uchhab Patra v. Brundan Mallik, 1969 35 CutLT 86 (equivalent to AIR 1969 Orissa 142), learned senior counsel contended that there has been illegal consideration of the application of the petitioner resulting the illegal impugned order. Sri Parija, learned senior counsel thus contended that unless this Court interferes in the impugned order, the situation will lead to a bad proceeding and also will create a confusing situation involving the disputed property, for which a decree is already obtained.