1 IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2177 of 2007 Pratibha Devi, wife of Sri Chaturanand Jha, resident of village Mehda Sahpur, Pergana Bhusari, P.S. Cheriya Bariyarpur, Sub- Division Manjhaoul, Sub-Registry-Bakhari, District Begusarai. …Defendant-Judgment Debtor-Petitioner. Versus 1. (i) Arun Kumar Jha (ii)Sudhakar Jha (iii) Padam Shannkar Jha All sons of late Sri Phulena Jha, residents of village Mehda Sahpur, Pergana Bhusari, P.S. Cheriya Bariyarpur, District Begusarai. (iv) Suman Devi, D/o late Sri Phulena Jha, wife of Vinay Kumar Mishra, resident of Ward No.3, Rosera, P.S. Rosera, District Samastipur. …Plaintiffs- Decree Holder-Opposite Parties. 2. Amar Kant Jha 3. Digamber Jha 4. Lalit Kumar Jha 5. Ashok Kumar Jha 6. Dilip Kumar Jha All sons of late Kamla Kant Jha. 7. Smt. Prabha Devi 8. Smt. Usha Devi Both daughters of late Kamla Kant Jha 9. Kaushalendra Jha, son of late Bhagirath Jha 10. Smt. Gulabi Devi 11. Smt. Ranjan Devi 12. Smt Rani Devi All serial nos. 10 to 12 daughters of Bhagirath Jha All residents of village Mehda Sahpur, P.S. Cheriya Bariyarpur District Begusarai …….Defendants-Judgment debtors-Opposite Parties. -------- For the Petitioners : M/s Keshav Shrivastava, Sr. Advocate and Amresh Kr. Verma, Advocate For Opp. Party no.1 series : M/s Shivajee Pandey, Sr. Advocate, Ajit Kumar and Avinash Kumar, Advocates. --------- 08/ 16.09.2009 Heard learned counsel for the petitioner and learned counsel for opposite parties . 1 series. 2. This civil revision has been filed by the defendant-judgment debtor-petitioner challenging order dated 2 10.09.2007, by which learned Munsif-II, Begusarai rejected his application under Order XXI Rule 11 of the Code of Civil Procedure (hereinafter referred to as `the Code’ for the sake of brevity ) filed in Execution Case No.03 of 2005. 3. The instant matter arises out of Title Suit No. 70 of 1981, which was filed by the plaintiff-decree holder-opposite party no.1 against Kamla Kant Jha (father of the petitioner) for recovery of possession from the suit land as well as for other ancillary reliefs. In the said suit, the defendants appeared and contested claiming to be the purchasers of the suit land vide registered deed dated 21.05.1981 from the original owner in the name of his daughter (petitioner). However, after considering the pleadings and evidence of the parties, the trial court decreed the suit by judgment and decree dated 30.06.2000. 4. Against the aforesaid judgment and decree of the trial court, the defendant of the suit, namely, the father of the petitioner, filed Title Appeal No. 28 of 2000 and during the pendency of that title appeal he died, whereafter the petitioner along with her brothers were substituted in the title appeal on 04.03.2003 in place of the deceased sole original appellant. It transpires that the said title appeal continued being contested by both the parties and after considering the respective claims of the appellants and the respondents, the learned court of appeal below dismissed the aforesaid title appeal vide its judgment and decree dated 28.10.2004. The said judgment and decree was not challenged in a second appeal before this Court either by the 3 petitioner or her brothers. 5. It is also claimed by the learned counsel for the petitioner that after the aforesaid judgment and decree the petitioner asked her brothers for handing over sale-deed dated 21.05.1981 to her but they refused to do so and hence she filed Title Suit No. 306 of 2004 against her brothers for declaration that the sale-deed dated 21.05.1981 was executed by the original owner in favour of the petitioner as she was the purchaser and had paid the consideration amount because her husband was in service and hence her father or her brothers had no right or title over the suit property. In the said suit, opposite party no.1, namely, the plaintiff of Title Suit No. 70 of 1981, was not impleaded as a party and finally the said title suit bearing Title Suit No. 306 of 2004 was decreed on compromise between the petitioner and her brothers vide compromise decree dated 10.06.2005. It is also claimed by learned counsel for the petitioner that thereafter the petitioner filed Title Suit No. 158 of 2005 against opposite party no. 1 for declaration that the judgment and decree passed in Title Suit No. 70 of 1981 was not binding on them. The said suit is still pending before the trial court. 6. However, in the meantime, the plaintiff-decree holder-opposite party no.1 filed Execution Case No. 03 of 2005 for execution of the decree dated 30.06.2000 passed in Title Suit No. 70 of 1981, which was affirmed by the lower appellate court in Title Appeal No. 28 of 2000 vide judgment and decree 4 dated 28.10.2004. In the said execution case, the defendant- judgment debtor-petitioner appeared and filed the aforesaid application under Order XII Rule 97 of the Code claiming that she cannot be ousted from the suit premises as the decree in the suit was not against her and she was not impleaded in the said title suit. The said application of the petitioner has been rejected by the learned court below vide its order dated 10.09.2007, which is under challenge in the instant civil revision. 7. From the arguments made by learned counsel for the parties and the facts and circumstances of the case including the materials on record as well as the impugned order, it is quite apparent that Title Suit No. 70 of 1981 was filed on 25.07.1981 by opposite party no.1 against the father of the petitioner only without impleading the petitioner. However, the said defendant, namely, the father of the petitioner, appeared in the suit and filed his written statement claiming that he was the purchaser of the suit land by registered sale deed dated 21.05.1981 executed by the original owner and the petitioner was only a name lender and hence he claimed that the sale-deed dated 21.05.1981 with respect to the suit land from the original owner did not confer any right, title or interest in the plaintiff. The said suit was decreed by the trial court and the said decree was challenged by the defendant, namely, the father of the petitioner in Title Appeal No. 28 of 2000 during the pendency of which he died and vide order dated 04.03.2003 the petitioner along with other brothers were substituted as appellants in the title appeal. 5 8. It is quite apparent from the materials on record that the petitioner even after being impleaded as appellant in the title appeal did not raise any objection that her father was not the real purchaser of the suit land by registered sale deed dated 21.05.1981, and that she was herself the real owner of the suit land as the said sale-deed was executed in her favour, rather the petitioner along with her brothers proceeded with the appeal challenging the judgment and decree of Title Suit No. 70 of 1981 on other grounds and finally title appeal was dismissed on contest by the learned court of appeal below vide judgment and decree dated 28.10.2004. 9. It further transpires that only after losing in the title appeal, the petitioner filed Title Suit No. 306 of 2004 against her brothers only without impleading opposite party no.1 which was decreed vide a compromise decree 10.06.2005 and thus it is quite apparent that the said compromise decree is not at all reliable or binding upon opposite party no.1, who was the plaintiff decree holder of Title Suit No. 70 of 1981. 10. In the said circumstances, the judgment and decree of the trial court passed in Title Suit No. 70 of 1981 having been affirmed by the lower appellate court in Title Appeal No. 28 of 2000 vide judgment and decree dated 28.10.2004 the decree of the said title suit merged in the decree of the said title appeal, in which the petitioner herself was a party, namely one of the appellants. Accordingly there was no occasion for the learned executing court to entertain any 6 application of the petitioner under Order XXI Rule 97 of the Code in the execution case which was for execution of the aforesaid appellate decree which had attained finality and in which the petitioner was herself a party as one of the appellants who had lost. 11. In the aforesaid facts and circumstances, this Court does not find any illegality or any jurisdictional error in the impugned order of the learned court below. Accordingly, this civil revision is dismissed. MPS/ ( S. N. Hussain, J. )