RAM NATH SAH Vs. KALI PRASAD SINGH

JUDGEMENT

(1.) The revision application has been filed against the order dated 19-6-1998 passed by Munsif, Gopalganj in Execution Case No. 5 of 1984 whereby the petition of the petitioner under Order 21, Rule 29 and Section 151 of the Code of Civil Procedure, hereinafter referred to as the 'Code' for stay of execution case was rejected.

(2.) The re'ume' of the relevant facts of the case are that the plaintiff-opposite party filed Title Suit No. 169 of 1972 in the Court of Munsif for eviction against the defendant-petitioner on the ground of default in payment of rent and also on the ground of personal necessity of the suit premises. The defendant admitted the tenancy and stated that he was tenant of the plaintiff till 25-3-1972. On 26-3-1972 the plaintiff-opposite party executed a deed of agreement to sell the suit premises in his favour and as such there was no relationship of landlord and tenant nor the plaintiff was in bona fide need of the suit premises. The petitioner also filed Title Suit No. 556 of 1974 for specific performance of contract against the opposite party before the Sub-Judge, Gopalganj which was pending for disposal.

(3.) The trial Court decreed the suit and held that the defendant defaulted in payment of rent and also that the plaintiff was in bona need of the suit premises. The petitioner filed Title Appeal No. 33 of 1983 against the judgment and decree of the trial Court. While the appeal was pending, Title Suit No. 556 of 1974 filed by the petitioner for specific performance of contract was decreed against which the opposite party filed First Appeal No. 265 of 1987 which is pending for disposal. The petitioner filed a petition in the title appeal under Order 41, Rule 27 of the Code of Civil Procedure for admitting the judgment passed in Title Suit No. 556 of 1974 as additional evidence which was rejected by the appellate Court. The appeal was subsequently heard on merit and was dismissed and the finding of the trial Court was affirmed. The petitioner filed Second Appeal No. 107 of 1995 against the judgment and decree of the Courts below. The appeal was admitted and substantial question of law was framed that 'whether the appellate Court committed error of law in rejecting the petition filed by the appellant under Order 41, Rule 27 of the Code of Civil Procedure and the same has affected the result of the appeal. This Court dismissed the appeal and held that rejection of the petition under Order 41, Rule 27 of the Code did not affect the judgment in appeal. The petitioner challenged the said judgment before the Apex Court which was also dismissed. The petitioner thereafter filed a petition under Order 21, Rule 29 and Section 151 of the Code in Execution Case No. 5 of 1984 levied by the decree holder-opposite party for stay of execution case on the ground that the suit for specific performance of contract against the opposite party has been decreed. The executing Court rejected the said petition by the order impugned.