IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.646 of 2009 ANITA DWEDI & ORS Versus RAJENDRA RAUT & ORS ----------- 2 24.04.2009 This revision application has been filed by the petitioners against order dated 16.3.2009 passed by the learned Munsif Sadar, Motihari (Champaran East) in Execution Case No. 7 of 2006. By the said order, learned court below has rejected the petition of the petitioners filed under Order 21 Rule 35 and 97 along with Section 151 of the C.P.C. for staying the delivery of possession and for consideration and decision on his claims. Learned counsel for the petitioners submits that the petitioners were purchasers from the original plaintiff who is said to have died during the pendency of the suit having been substituted by his son opposite party no. 1 who has now become decree holder. He submits that the petitioners on the basis of valid purchase wanted their share also to be carved out and earmarked from the share of the decree holder pursuant to the decree passed in the partition 2 suit. He further submits that in view of the petition filed under Order 21 Rule 97 of the C.P.C. and in view of their showing prima facie title to the property purchased by them constituting some of the property involved in the suit, the learned court below was legally duty bound to institute a Misc. Case on the basis of their application and adjudicate the matter and decide right, title and interest of the parties in respect of their respective claims. He submits that the learned court below has disposed of the petition with observation that the petitioners may seek relief from their vendor or may file independent suit. He submits that the original vendor has died and his sons have been substituted in the suit and, therefore, they are bound by the sale deed executed and registered by their father to which they are now resisting. He submits that in view of the amended provisions of Order 21 Rule 97 of the C.P.C. fresh suit is now barred and all the matters connected with the right, title and interest of any party connected with the subject matter, has to be decided in the execution 3 proceeding itself. He submits that the legal position in the matter as emanating from the amended provision of law was not properly appreciated by the learned court below and, therefore, petitioners may be given liberty to file a fresh application stating all the details of their claims as well as legal position in the matter with a prayer to the learned court below to register their application as Misc. Case and adjudicate the matter deciding right, title and interest of the parties in the subject matter of the decree under execution. In view of the submission of the learned counsel for the petitioners, liberty is granted to the petitioners to file such an application before the court below. In case such an application is filed by the petitioners before the court below, the court below shall consider the same in view of the pleadings of the learned counsel made in the petition and take appropriate steps in the matter in accordance with law. In case such petition is filed, the learned court below shall consider passing any interim order of stay of further proceeding till the final orders are passed by 4 the court below on such petition. With the above observations and directions, this revision application is disposed of. Arvind/ (J. N. Singh, J.)