ABDUL BARI Vs. ANISUL RAHMAN

JUDGEMENT

(1.) THESE four applications have been heard together ns they involve common questions of Jaw. The question for consideration is whether and in what manner a third party stranger to the decree can challenge the decree for possession of immovable property. It would be worthwhile to briefly notice the facts of each case first.

(2.) IN C. R. Nos. 1526 and 1481 of 1988, the material facts as these. Opposite Party Nos. 1 and 2 purchased 6 kathas land of Plot Nos. 982. and 983. On 12 -4 -1971 Opposite Party No. 2 sold 1 katha to the petitioner under a registered sale deed. Later, Opposite Party No. 1 instituted Title Suit No. 79 of 1972 against Opposite Party No. 2 for partition of the land without impleading the petitioner. The petitioner learned about the suit at a very late stage after the decree had already been passed. He, in the circumstances, filed an application under Order I, Rule 10 of the Code of Civil Procedure (In short, the Code) which was rejected. The petitioner moved this Court in C. R. No. 774 of 1986 which was dismissed with an observation that the petitioner may file a separate suit of his own. Accordingly, he filed Title Suit No. 182 of 1586. In the meantime, final decree was prepared in Title Suit No. 79 of 1972 in which portions of the aforesaid two plots were alloted to Opposite Party Nos. 1 and 2. The decree was put to execution in Execution Case No. 1 of 1987. The petitioner filed an application for injunction under Order XXXIX, Rules 1 and 2 of the Code in Title Suit No. 182 of 1986 to restrain the Opposite Party from demolishing the shop and disturbing his possession in execution of the final decree. He also filed an application in Execution Case No. 1 of 1987 for stay of delivery of possession till disposal of Title Suit No. 182 of 1986. While disposing of the injunction matter in the suit, the court found that the petitioner had prima facie case. However, on the question of balance of convenience and irreparable injury, adverse findings were recorded. The court also held, in effect, relying on 1987 BLJR 504 - -Patna Public School V/s. Dr. Sharda Ranjan Prasad Sinha, that as the petitioner was not party in Title Suit No. 79 of 1972 the suit was not maintainable and he could not obstruct execution of the decree passed in that suit by an order of injunction. Accordingly, it rejected the petition on 15 -7 -1988. The order was upheld in appeal on 4. -8 -1988. The appellate court also, inter alia, placed reliance on 1987 BLJR 504, These orders have been challenged in C. R. No. 1481 of 1988. The aforesaid stay petition filed in Execution Case No. 1 of 1987 also was rejected on 15 -7 -1988 holding that the petitioner had no locus standi in the matter. A learned Single Judge of this Court at the time of admission of C. R. No. 1526 of 1988 expressed doubts about the correctness of the decision in 1987 BLJR 504 and accordingly, directed the revision application to be heard by a Division Bench. Later C. R. No. 1481. of 1988 also was admitted for hearing along with C. R. 1526 of 1988.

(3.) IN C. R. No. 1458 of 1989 the petitioner obtained a decree for specific performance of contract in Title Suit No. 11 of 1974. In course of time the sale -deed was executed by the court concerned in Execution Case No. 10 of 1979 and registered. The Opposite Party obstructed delivery of possession and later filed an application, purportedly under Rules 97, 97 and 98 of Order XXI and Sec. 151 of the Code for setting aside the sale. The application was registered as Misc. Case No. 38 of 1985. By the impugned order dated 20 -6 -1989 the Misc. Case has been allowed holding that the said Opposite Party was the owner of the suit premises and the petitioner had no right to claim the relief in the execution case against him the decree (for specific performance) itself was not binding on him. The court, inter alia, relied on a Division Bench decision of the Madhya Pradesh High Court in Bhagwat Narain Dwivedi V/s. Kasturi - - , which has held that the executing court had no jurisdiction to effect delivery of possession by removing a person who is bound by the decree. At the time of admission of the revision, the learned Judge observed that a Single Judge of this Court had also taken a similar view following the decision in Bhagwat Narain Dwivedi in the case of Kumar Krishnanand V/s. Babulal, 1987 BLJ 306. As the question regarding the maintainability of the claim of a third party, at his instance, under Order XXI, Rule 97 of the Code had been referred to Division Bench in C. R. No. 1526 of 1988, this case also directed to be heard along with that case.