RAMU PRASAD JAISWAL Vs. RAKESH NARAYAN

JUDGEMENT

(1.) Petitioner by way of filing the present writ petition under Article 227 of the Constitution of India has prayed for issuance of an appropriate writ/order/direction for quashing and setting aside the order dated 16.4.2012 (Annexure-6) passed by the learned Munsif, Palamau at Daltonganj in Execution Case No. 5/2011, whereby learned court below rejected the petition dated 24.2.2012 filed by the petitioner under Section 47 of the CPC. Heard the learned senior counsel for the petitioner as well as respondent and perused the impugned order as well as other materials placed on record.

(2.) Learned senior counsel for the petitioner, while referring the impugned order, submitted that the learned court below has not properly considered the scope under Section 47 of the CPC. The main contention, which was raised before, the executing court in an application filed under Section 47 of the CPC, was that the decree is a nullity for want of inherent jurisdiction and therefore, the said issue can be raised before the executing court and the executing court is required to decide the said application in detail and for that purpose, the application filed under Section 47 of the CPC is required to be registered as miscellaneous case and the same is required to be dealt with after affording reasonable opportunity to the parties. It is the case of the petitioner that the respondent/original plaintiff filed title eviction suit before the trial court and the said suit was -filed under Section 11(1)(b) and (c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act and therefore, the said suit was filed by adopting special procedure as enumerated under Section 14 of the Act.

(3.) Learned senior counsel for the petitioner/while referring Annexure-3 to the main petition i.e. clarification filed on behalf of decree-holder on the objection petition dated 24.2.2012 filed by the judgment-debtor, pointed out from paragraph Nos. 3 & 4 that the fact regarding filing of eviction suit under Section 11(1)(c) and grant of leave as laid down under Section 14(4) has been adopted by the original plaintiff. However, ignoring this fact, the learned executing court rejected the application filed under Section 47 of the CPC.