RAMA NAND SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD.

(2.) THE petitioner fa this writ application claims that he is a tenant of the decree holder respondent no. 2 on a monthly rent of Rs. 35A in respact of an area of about 1,000 square feet Respondent No. 2, the decree holder has appeared. The grievance of the petitioner is that he is in occupation of the aforesaid premises as a tenant of the decree holder and, as such, the decree holder in execution of a decree cannot evict him as the decree is not against the petitioner. In other words, he asserts his right to remain in possession notwithstanding the decree. This is vehemently opposed by respondent no. 2, the decree holder. In any event, it is submitted on behalf. of the petitioner that in terms of Order 21, Rule 97 of the Code of Civil Procedure when the possession of the petitioner was sought to be disturbed in purported execution of the decree, he had resisted and immediately moved the Executing Court by an application in terms of Order 21, Rule 97. His grievance is that notwithstanding such an application, the trial Court posted the same for hearing on 21.9.2007 whereas fresh steps for executing the decree by effecting delivery of possession was being taken. This would cause petitioner serious prejudice inasmuch as once delivery of possession is effected, hearing his application would be redundant. Respondent No. 2 submits that the decree was passed as far back as in 1964. It was pending execution. Various steps were taken from time to time including those taken after 1980 when allegedly the tenancy was created, but the petitioner never took any steps to oppose delivery of possession in execution of the decree. Learned counsel for respondent no. 2, therefore, submits that having waited for such a long time and after two orders passed by this Court in Civil Revision No. 29 of 2004 directing the Executing Court to take immediate steps to execute the decree, he has now turned up to oppose delivery of possession. Having considered the matter, it is clear that respondent no. 2 has been trying to get the decree executed. This Court has noticed the manner in which execution has been opposed/resisted from time to time. A decree granted in the year 1964 yet remains to be executed in full. Nevertheless, Order 21, Rule 97 gives a right to a person resisting delivery of possession pursuant to execution of a decree. Such a right has to be respected. In such circumstances, in my view the Executing Court would act in accordance with law and see that provisions of Order 21, Rule 97 are not made redundant only because on earlier occasions, this Court directed for immediate execution of the decree. It should not be understood that this Court in the civil revision aforesaid ever directed that the Executing Court should throw legal rights of parties to wind. I may point out here that the petitioner has claimed a very small area of land. It is only in that respect, the matter would be heard and that would not come in way of the Executing Court in enforcing the execution to other parts of the land in question.

(3.) I , therefore, direct that the Executing Court that is Subordinate Judge -Ill, Patna shall expeditiously hear the application of the petitioner in terms of Order 21, Rule 97 read with Rule 35 which has been registered as Miscellaneous Case No. 15 of 2007. I may also notice that, I have not applied myself at all to the contentions of either party on merits which has to be judged by the Executing Court in accordance with law.