RITA DEVI Vs. SURENDRA BAHELIA

JUDGEMENT

(1.) The instant petition has been filed against the order dtd. 17/2/2018 passed by the learned Sub-Judge-IV, Chapra in Execution Case No. 03 of 2013 by which the learned Sub. Judge-IV, Chapra rejected the petition dtd. 2/1/2018 filed on behalf of the petitioner under Order 21 Rule 29 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code").

(2.) Briefly stated the case of the parties may be summarized as follows:-

(3.) It has been submitted by the learned counsel for the petitioner that the petitioner was not a party at any stage of the suit and when she tried to get herself impleaded as party at final stage of decree, the same has been opposed by the plaintiff/respondent no. 1. Further, preparation of final decree is based on judgment and decree dtd. 31/5/2007 passed in Title Suit No. 209 of 1994, which is not in accordance with law as vide said judgment and decree dtd. 31/5/2007, the said suit has been dismissed. Learned counsel further submits that the final decree has been prepared against a dead person as Hira Baheliya died on 18/6/2008 and he has been substituted in the Title Appeal but in the final decree he has been made a party in place of his heirs, which itself shows that no opportunity was given to the legal heirs of the vendor of the petitioner by the learned Advocate Commissioner at the time of preparation of final decree and has allotted the land of the petitioner in favour of the plaintiff/respondent no. 1 on which this petitioner has been residing with her family members after constructing a residential house. Raising all these issues, the petitioner filed an application on 26/9/2016. Though the plaintiff/respondent no. 1 filed rejoinder but he did not give any reply to the objections as raised by the petitioner. Learned counsel further submitted that the learned executing court, after hearing both sides, finally rejected the petition dtd. 26/9/2016, without application of judicial mind and without assigning proper reasons and mainly on the ground that the petitioner has raised objection with respect to preliminary decree and not with respect to final decree and further on the ground that she suppressed this fact that her application for impleading her as party in the final decree has already been rejected. Learned executing court has failed to give its finding with respect to specific objections regarding final decree, which had been prepared on the basis of preliminary decree dtd. 31/5/2007, by which the suit was not decreed, rather the same has been dismissed as such there was no determination of rights of the parties. The learned executing court did not record any finding regarding final decree which has been prepared against a dead person. Learned counsel further submitted that since the petitioner was not added as party in the suit filed by the plaintiff/respondent no.1, she herself filed an independent suit bearing Partition Suit No. 174 of 2013 with respect to purchased land. During pendency of the Partition Suit No. 174 of 2013, the petitioner filed an application under Order 21 Rule 29 of the Code on 2/1/2018 in Execution Case No. 03 of 2013 with a prayer to stay the further proceeding of execution case till disposal of Partition Suit No. 174 of 2013. However, the learned court below rejected the petition dtd. 2/1/2018. During pendency of the Partition Suit No. 174 of 2013, the decree holder filed an application under Order 7 Rule 11 of the Code with a prayer to reject the plaint stating it to be not maintainable. The learned court below rejected the petition filed by the decree holder vide order dtd. 27/2/2018. Learned counsel further submitted that both the cases are pending before the same court and on one hand, the learned court below dismissed the petition filed by the decree holder under Order 7 Rule 11 of the Code holding that issues have been framed and evidence is going on, but, on the other hand, the same court rejected the petitioner's petition on the ground that her name did not find place in the decree under appeal. Learned counsel further submitted that there has been no settlement/compromise before the learned appellate court as after death of Hira Baheliya, his wife and children moved an application before the learned appellate court admitting the claim of 1/3rd share of the plaintiff/respondent no. 1. Even in final decree, the legal representatives of Hira Baheliya have not been made party. Learned counsel further submitted that if contentious issues are involved in writ proceedings, then normally stay should be granted. On this aspect, learned counsel for the petitioner relied on a decision of Hon'ble Apex Court in the case of Dinesh Prabhulal Barat v. Sai Palace Hotels (P) Ltd., reported in (2004) 13 SCC 667. On this aspect, learned counsel also relied on the decision of Hon'ble Supreme Court in the case of Shaukat Hussain v. Bhuneshwari Devi reported in AIR 1973 SC 528 [Paragraphs 4, 5 and 6]. Learned counsel further submitted that the learned trial court has observed that the petitioner was not a party in decree, which was sought to be executed and the said decree was not issued against him, but the petitioner was subsequently made party in the execution proceeding. When the petitioner has been made party before the executing court, naturally, she has a right to appear before the learned executing court and to seek stay on the proceeding before it. Learned counsel further submitted that the same subject matter of suit proper is also the subject mater of Partition Suit No. 174 of 2013. The spirit of Order 21 Rule 29 of the Code is that the execution of a decree will be kept in abeyance if any suit regarding the same property is pending against the decree holder. Since, the petitioner has not been made party, she was compelled to file the partition suit and when she moved before the learned executing court to avail her right, she stepped into shoes of her vendor. The learned counsel further submitted that the legal representatives of original defendant-Hira Baheliya were not made party in the final decree proceeding, so, there was no occasion either for the petitioner or for the legal representatives of her vendor to put up their case before the learned Survey Knowing Pleader Commissioner, so that he could have taken care of the objections of the petitioner and could not have allotted her share to other co-sharer. Thus, the learned counsel submitted that the impugned order is not sustainable and the same be set aside.