RAMESHWAR PANDEY Vs. MALTI DEVI

JUDGEMENT

(1.) THESE two civil revision applications arose out of orders dated 22.5.98 and 26.6.98 passed by Munsif, Patna in Execution case no. 19/89 by which prayer of the petitioner for stay of the delivery of possession of the suit property in execution of the decree has been rejected.

(2.) THE facts of the case, in nut shell, are that the plaintiff -opposite party. Smt. Malti Devi, filed Eviction suit no. 50/79 against the deceased father of the petitioner for a decree of eviction in respect of house property situated in the district of Patna. The plaintiff 's case was that she purchased the aforesaid property from one Brahmdeo Pandey by virtue of sale deed dated 20.6.70 and inducted' the father of the petitioner as tenant. Since the tenant defaulted in payment of rent, she instituted the suit for eviction. The eviction suit was decreed by the trial court and against the said judgment and decree the petitioners father filed Appeal no. 114/89 which too was dismissed. The deceased father of the petitioner then filed Second Appeal no. 64/93 which too was dismissed by this court. However, it is al - leged that during the pendency of eviction suit Kundan Pandey executed a deed of gift in favour of Rameshwar Pandey -petitioner on 11.5.85. The plaintiff then filed title suit for declaration that the deed of gift dated 11.5.85 executed in favour of the petitioner is forged and fabricated document. The said suit was eventually dismissed, and against the judgment of that suit, plaintiff -opposite party preferred appeal which is pending. However, in view of the subsequent development, the petitioner filed an application before the Executing court in the aforementioned Execution case no. 19/89 and prayed for stay of delivery of possession till the disposal of the Misc. case no. 7/98 which was filed by the petitioner under Section 47 CPC, challenging the execution, discharge and satisfaction of the decree. The said petition was rejected by the court below in terms of the order dated 22.5.98. This order is subject matter of C.R. no. 1248/98. Petitioner then filed another application seeking similar relief for stay of the delivery of possession of the suit property in execution of the decree in Execution case no. 19/89 which too was rejected by order dated 26.6.98 which is subject matter of C.R. no. 1310/98.

(3.) IT is not disputed that in the eviction suit filed by opposite party, defen -dant -petitioner did not dispute the relationship of Landlord and tenant and the trial court after considering the evidence and after hearing the parties decreed the eviction suit. The petitioner challenged the judgment and decree in appeal but the appeal was dismissed. The petitioner then moved this court in Second appeal which too was dismissed. The decree was then not in execution. However, during the pendency of the suit, suit property was alleged to have been transferred in favour of the petitioner. In order to avoid the said deed of transfer, opposite party brought a separate suit seeking declaration that the transfer deed »is forged, fraudulent and void. 'That suit was dismissed but the appeal filed by the opposite party is pending. The petitioner, in the meantime, filed objection under Section 47 CPC which was registered as Misc. case no. 7/98. The petitioner, therefore, filed an application for stay of the delivery of possession till the disposal of Misc. case no. 7/98. The court below after considering the entire facts of the case, came to the conclusion that merely because a Misc. case was filed it was not fit case for stay of the delivery of possession. I do not find any cognent reason to differ with the orders passed by the court below.