IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.3 of 2007 ARUN KUMAR MISHRA, S/O LATE RAM AWATAR MISHRA, R/O MOHALLA SAIDNAGAR, LAHERISARAI, UNDER LAHERIASARAI P.O. & P.S., DISTRICT DARBHANGA .. APPELLANT Versus 1. SITARAM MISHRA, S/O SRI PASHUPATI NATH MISHRA 2. ARCHANA MISHRA, W/O GHANSHYAM MISHRA, DECEASED 3. BALRAM MISHRA, S/O SRI PASHUPATI NATH MISHRA 4. SHRIRAM MISHRA, S/O SRI PASHUPATI NATH MISHRA ALL RESIDENTS OF MOHALL WHEELERGANJ, GUDARI BAZAR, P.O. & P.S. LAHERIASARAI, DISTRICT DARBHANGA .. RESPONDENT/ DEFENDANTS 1ST SET 5. NAVEDITA SINHA, W/O LATE RAMESHWAR PRASAD SINHA 6. AMIT KUMAR SINHA, S/O LATE RAMESHWAR PRASAD SINHA 7. BIBEK SINHA, S/O SRI AMIT KUMAR SINHA ALL RESIDENTS OF MOHALLA KATHALBARI, P.O. DARBHANGA, P.W. L.N. MITHILA UNIVERSITY CAMPUS, DISTRICT DARBHANGA .. RESPONDENT/ DEFENDANTS 2ND SET 8. ASHA JHA, W/O JAI CHANDRA JHA (DECEASED) 9. SANJEEV KUMAR JHA, S/O MOD CHAND JHA 10. RAJEEV KUMAR JHA, S/O MOD CHAND JHA ALL RESIDENTS OF MOHALLA B.K. ROAD (WHICH WAS PREVIOUSLY KNOWN AS KACHAHRI ROAD) P.O. & P.S. LAHERIASARAI, SUBDIVISION SADAR, DISTRICT DARBHANGA .. RESPONDENT/ DEFENDANTS 3RD SET **** /13/ 11 August 2010 Heard the learned counsel for the parties. 2. This Miscellaneous Appeal is directed against the order, dated 27.09.2006, passed by Sub Judge, I, 2 Darbhanga, in Partition Suit No. 31 of 2003 by which he has rejected the petition for injunction restraining the defendants fist set from taking possession in Execution Case No. 5 of 2003 with regard to subject matter of the suit property of the partition suit. 3. The plaintiff is the appellant purchase of suit property from defendants second set and after purchase of the property from defendants second set he filed a suit for partition for carving out his share which he has purchased from defendants second set. Further, case is that defendants first set had also purchased a portion of the suit property from the defendants second set. 4. Defendants 1st set also purchased land with boundary from defendants 2nd set and filed a suit for eviction for evicting the tenant on the said purchased land and building and got an ex-parte decree and filed an execution case bearing no. 5 of 2003 for eviction of the tenant. In the said execution case the plaintiff appellant filed a petition under Order 21 Rule 97of the Civil Procedure Code and even a stay petition was filed which was refused and, thereafter, a Miscellaneous Appeal was 3 preferred against the order refusing the stay while the Miscellaneous Appeal was pending before the District Judge, Darbhanga, a compromise petition was filed between the plaintiff and defendants first set and it was agreed that the amount realized from the tenant as rent shall be deposited in United Commercial Bank, Laheriasarai, and the present appellant get the share on the respective portion of the suit property in partition suit shall get the amount of the rent which has been deposited in United Commercial Bank, hence, contends that since the appellant and defendants first set have compromised in the Miscellaneous Appeal which arises out on the petition under Order 21 Rule 97 of the Civil Procedure Code be effected in this title suit restraining the defendants first set from taking possession in Execution Case No. 5 of 2003. 4. The learned counsel for the appellant contends that since the parties have compromised and, hence, parties may be restrained. 5. However, the learned lower Court has rejected the petition for injunction that the grant of injunction restraining defendants first set from prosecuting the 4 execution case is hit by Section 41 of the Specific Relief Act, 1963, as a person cannot be allowed to be restrained from pursuing his legal remedy. However, it is apparent that against the execution proceeding the plaintiff preferred petition under Order 21 Rule 97 of the Civil Procedure Code and in the said proceeding a compromise petition has been filed by the appellant before the execution Court to pursue his remedy that the execution Court may not proceed with the execution case. However, restraining the defendants in pursuing their remedy in execution case is prohibited under Section 41 of the Specific Relief Act, 1963, that defendants first set may not be restrained for pursuing his legal remedy and if the appellant has to raise any objection he may raised objection in that case. But, further, in the present case which has only been filed for carving out share, i.e., partition suit and there is neither any relief sought for challenging the decree nor judgment of the eviction suit and, hence, I do not find any merit or irregularity in the impugned order. However, if the appellant, if so advised, may pursue his remedy before the execution Court and since the matter is pending it is hereby directed that the lower 5 Court will proceed with the case on day-to-day basis for early disposal and without any adjournment with strict compliance of the order under Section 17 of the Civil Procedure Code. 6. With these observations and directions, this application is disposed off. Cp:2/S.A. ( Gopal Prasad, J. )