SHAFIQUE Vs. BASANTI DEVI

JUDGEMENT

(1.) Petitioner in the present application under Article 227 of the Constitution of India is aggrieved by an order dated 28.11.2011 passed in Misc. Case No. 43 of 2005 by learned Sub-Judge-8th, Motihari, whereby he has rejected a petition dated 21.7.2011 filed by the petitioner wherein he challenged the maintainability of the aforesaid Misc. Case No. 43 of 2005 said to have been filed under Order XXI, Rules 97 and 99 of the Code of Civil Procedure (hereinafter referred to as the 'Code'). The petitioner has also challenged the order dated 30.3.2012 passed in the said Misc. Case No. 43 of 2005 by the learned Court below, whereby he refused to review the earlier order dated 28.11.2011.

(2.) The facts relevant for adjudication of the present case are not much in dispute.

(3.) Title Suit No. 165 of 1989 was filed by respondent No. 2 Satya Narain for specific performance of contract in respect of 1 Katha 6 dhurs of land bearing plot No. 1334 situated at Pakri Bazar Main Road, Motihari, Police Station-Motihari, District-East Champaran. Suit was decreed ex-parte. Respondent No. 2 thereafter filed an Execution Case No. 1 of 1993 for execution of ex-parte decree. A writ for delivery of possession was issued. The petitioner resisted delivery of possession and filed a petition under Order 21, Rules 97, 99 and 101 of the Code which was registered as Misc. Case No. 2 of 2000. The aforesaid Misc. Case No. 2 of 2000 was allowed vide judgment and order dated 8.7.2003. Ex parte decree was set aside and title in favour of the petitioner was declared and his possession confirmed. Thereafter, the respondent No. 1 Basanti Devi filed an application under Order XXI, Rule 97 of the Code, claiming her title and possession over 21/2 dhurs of total area of 1 Katha and 6 dhurs of the suit land. This application was numbered as Misc. Case No. 2 of 2003 and subsequently renumbered as Misc. Case No. 43 of 2005.