SHAHID AHMAD Vs. MUSHREER ATAL ALIAS MASOOR ALAM

JUDGEMENT

(1.) Heard the learned counsel appearing on behalf of the petitioners.

(2.) This petition is filed under Article 227 of the Constitution of India for quashing of the order dtd. 18/3/2023 passed by the learned Principal District Judge, Dhanbad in Civil Miscellaneous Appeal No.28 of 2022 whereby the memo of appeal filed by the petitioners under Order XXI Rule 97, 98 and 101 read with Sec. 151 of the C.P.C for setting aside the order dtd. 8/12/2022 passed by learned Civil Judge (Jr. Div.)-1st Dhanbad in Misc. Civil Application No.157 of 2022 (Arising out of Execution Case No.47 of 2019) has been rejected.

(3.) Mr. Mukhopadhyay, the learned counsel appearing on behalf of the petitioners submits that the petitioners are not the party in Title Suit No.6 of 2008 which was decreed in favour of the Opposite Parties by the judgment and decree dtd. 17/11/2017 passed by learned Civil Judge (Junior Division)-1st Dhanbad. He submits that the suit was filed for eviction and that has been decreed in favour of the plaintiff. He submits that fraudulently the decree has been obtained against the petitioners. He further submits that later on the petitioners have come to know about the aforesaid judgment/ decree dtd. 17/11/2017 passed by the learned court in Title Suit No.6 of 2008 and have filed application under Order XXI Rule 97, 98 and 101 read with Sec. 151 of the C.P.C being Misc. Civil Application No.157 of 2022 arising out of Execution Case No.47 of 2019 praying for stay of operation of Execution Case No.47 of 2019 and further prayed to pass necessary order upon the determination of question referred under Order XXI Rule 101 CPC. Further prayer was made not to evict them from the respective shops. He submits that the learned court by order dtd. 18/12/2022 dismissed the aforesaid Misc. Application which was challenged before the learned District Judge, Dhanbad in Civil Misc. Appeal No.28 of 2022 and he has also been pleased to reject the same. He submits that Misc. Appeal is maintainable and in spite of that the learned Principal District Judge, Dhanbad has not entertained the said appeal. He relied in the case of S. Rajeswari v. S.N. Kulasekaran And Others in Appeal (Civil) No.1417 of 2001.