IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.190 of 2003 MUKUND KUMAR SINGH Versus MAHADEO SAH & ORS ----------- 13 9/1/2009 Heard Mr. Uday Shankar Sharan Singh, counsel for the petitioner. Even though this Civil Revision Application has stood dismissed as against opposite party nos. 4 and 5, counsel for the petitioner would submit that as the issue involved in this application is with regard to rejection of an application filed by the petitioner under Order XXI, rule 97 of the Code of Civil Procedure resisting execution of decree in favour of the decree holder, opposite party no.1 Mahadeo Sah, the order impugned becomes severable and this Civil Revision Application will not abate on account of disposal of this application against opposite party nos. 4 and 5, the judgment- debtors. This Court, instead of going into technicality of the matter, has heard counsel for the petitioner on merits and it has found that whole claim of the petitioner as duly examined by the court 2 below in the impugned order with regard to resistance to the execution of decree was itself frivolous. The suit in hand whose decree is being sought to be executed, was of the year 1996 being Title Suit No. 137 of 1996. It was a suit for specific performance of contract and the trial court by judgment dated 30.7.1998 had decreed the suit. The said decree was levied for execution in Execution Case No. 21 of 1998, whereafter son of original judgment-debtor (Sarswati Devi) namely, Bhola Sah got a partition suit filed by his son Mithu Sah being Partition Suit No. 58 of 1999 and on the basis of this compromise decree in the partition suit dated 17.11.1999 arising out of Partition Suit No. 58 of 1999, the decree passed in favour of the plaintiff in Title Suit No.136 of 1996 was sought to be resisted on the ground that the land in question about which a decree for specific performance of contract has been passed had fallen in the share of Mithu Sah, the grand son of the original judgment-debtor (Sarswati Devi) and the said land was 3 thereafter transferred by Mithu Sah son of Bhola Sah to the petitioner in the year 2002 and as such he had capacity to resist the execution of decree as he was armed with a registered sale deed. The court below has noted the mischievous design of Mithu Sah son of Bhola Sah in delaying the delivery of possession. This Court has also gone into an application filed by the petitioner under Order XXI, rule 97 of the Code of Civil Procedure and has found that the petitioner, in fact, had purchased a bag of wind. It was so because the decree with regard to specific performance of contract against Sarswati Devi had already been passed on 30.7.1998 and that decree, even though exparte, still subsists. Therefore, what ever was done in the Partition Suit No. 58 of 1999 at the instance of Mithu Sah, son of Bhola Sah in absence of the decree holder of Title Suit No. 137 of 1998, namely, Mahadeo Sah will not be binding on him and in any way that will not be a ground for resisting execution of decree in favour of Mahadeo Sah. Purchase 4 of land by a registered sale deed, whether jointly executed by Bhola Sah or his son Mithu Sah, as canvassed in this Civil Revision Application by the purchaser from Bhola Sah or Mithu Sah, is a subsequent event and will definitely be governed by principles of lis-pendens. In that view of the matter, if the court below has rejected the application of the petitioner purportedly under Order XXI, rule 97 of the Code of Civil Procedure that cannot be said to be vitiated on account of jurisdictional error. Accordingly, there is no merit in this application and the same is therefore dismissed. (Mihir Kumar Jha, J.) Abhay Kumar