BISHWANATH SHAW Vs. HABU MODAK

JUDGEMENT

(1.) Heard the parties. In this writ petition, the petitioner has prayed for quashing the last part of the order dated 6-8-2005 passed by learned Munsif II.-Dhanbad in Execution Case No. 3 of 1994 whereby the petitioner's application, purportedly filed under Order XXI, Rule 97 of the Code of Civil Procedure has been rejected.

(2.) On perusal of the impugned order, it appears that the decree, which is sought to be executed, was passed in Title Eviction Suit No. 10 of 1970 whereby the plaintiffs' suit for eviction on the ground of default and personal necessity was decreed. The said suit was fought up to the Supreme Court and the tenants lost at all the stages. Subsequently, execution was levied to execute the decree. At this stage also he filed the application under the purported provisions of Order XXI, Rules 97 and 99 of the Code of Civil Procedure praying therein to drop the execution proceeding. It was stated that the applicant has acquired 1.5 decimals of land, more or less, from the ex-landlord by virtue of a settlement and thereafter his name was mutated and he has been paying rent in respect of the said land. Learned' Court below considered the petitioner's claim and found that in the suit which was decreed, the area of the land is 5 decimals and the boundary is also different. Learned Court further observed that after about 36 years of long litigation (which the petitioner lost upto the Supreme Court) when the decree is sought to be executed, this application has been deliberately filed. He held that the application does not come within the ambit of Rules 97 and 99 of the Code of Civil Procedure and rejected the said application.

(3.) Mr. Manjul Prasad, learned senior counsel appearing on behalf of the petitioner, submitted that the applicant has produced several documents and as such the case should have been registered as miscellaneous case and the claim made by the petitioner should have been adjudicated and should not have been rejected in limine.