BIBI ZAFIRA KHATOON Vs. MD HUSSAIN

JUDGEMENT

(1.) THIS application has been filed against the order dated 28.11.1997 passed in Misc. Case No. 16 of 1992 whereby it has been held that the decree in Eviction case No. 1 of 1984 has become infructuous and is not executable against applicant -opposite party no. 1.

(2.) THE petitioners tiled a suit for evicition against opposite party no. 2. Opposite party no. 1 filed a petition for intervention which was allowed. Opposite party no. 1 has also filed title suit no. 76 of 1983. for specific performance of contract against the petitioners. Both the suits were tried together. The suit filed by opposite party no. 1 for specific performance of contract was dismissed against which First Appeal No. 33 of 1989 was filed before this court and is pending for disposal. The evicition suit filed by the petitioners was decreed against opposite party no. 2, who was defendant no. 1 in the suit. Execution Case No. 7 of 1988. was levied by the petitioners. In the said execution case opposite party no. 1 filed a petition that the execution case is not maintainable. On the said petition Misc. Case No. 16 of 1992 was registered. The court held that the decree in eviction case has become infructuous and, the decree is not executable against opposite party no. 1.

(3.) LEARNED counsel for the petitioners submitted that the court has committed error in holding that the decree in eviction suit has become infructuous. He pointed out that the eviction suit has been decreed against defendant no. 1 i.e. opposite party no. 2 and as such it cannot be said that -the decree has become infructuous. He further pointed out that in view of Section 12 of the B. B. C. Act the decree is enforceable against all persons, who are in occupation of the suit premises. On the other hand, learned counsel for the opposite party no. 1 submitted that there was no decree against opposite party no. 1 and as such the court is justified in passing the order that the same is not executable against opposite party no. 1. He also pointed out that Section 12. of the B.B.C. Act has no application in the case. However, no one appeared for opposite party no. 2 inspite of service of notice.