IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1521 of 2009 RAI SHEO PARBATI NATH SAHAI, SON OF LATE G0RAKH NATH SAHAI, RESIDENT OF SRI NANDAN ROAD,NEAR SEMANARI HIGH SCHOOL,P.S.CHAPRA TOWN, DISTRICT-SARAN. -PETITIONER Versus KAMLA DEVI WIFE OF LATE RAI NARBDESHWAR NATH SAHAY, RESIDENT OF SRI NANDAN ROAD, NER B.SEMINARI HIGH SCHOOL, P.S. CHAPRA TOWN, DISTRICT-SARAN. -OPP.PARTY _____ For the Petitioner : M/s Ashok Kr. Mishra & Varun Kumar 3 04.02.2010 Heard learned counsel for the petitioner. This Civil Revision is directed against the order dated 21st July, 2009 passed by learned Munsif, Chapra, in Misc. Case no. 1 of 2001 / 13 of 2007/ Execution Case no. 1 of 2001. Learned counsel for the petitioner submitted that the petitioner has preferred an application under Section 47 of the Code of Civil Procedure for dismissing the Execution proceeding as being not maintainable. It is submitted that if the impugned order had been passed in his favour, the Execution proceeding could have finally been disposed of in 2 favour of the petitioner and as such the Civil Revision is maintainable in view of the proviso to Section 115(1) of the Code of Civil Procedure. It is submitted on behalf of the petitioner that the tenant had died in 1993 itself and the premises had been handed over by the tenant to him on 16.8.1988 itself. In that view of the matter, the Execution proceeding cannot proceed specially in view of fact that the petitioner is also the member of the joint family to which the suit premises belongs and the Partition Suit no.117 of 1991 is pending. The trial court has noticed that the petitioner filed a petition under Order 5 Rule 10 of the Code of Civil Procedure on the aforesaid grounds before the trial Court concerned before the Eviction Suit and the same was allowed. However, that order was set aside by this Court by order dated 7.12.1995 passed in Civil Revision no.851 of 1992 holding therein that the sale deed stands exclusive in the name of plaintiff and the suit being simple suit for eviction, the petitioner was not necessary party. In that view of the matter, the Court concerned also observed that even after that the petitioner did not file any independent suit for declaration of 3 his right, title and interest over the property and since partition suit concerned is going on and he is one of the defendant there, he is unable to make out an independent title with regard to the suit property involved in the eviction suit. In that view of the matter, Executing Court concerned has dismissed the petition. I do not find any jurisdictional error committed by the concerned Court. The Court below has also noticed the provision of Section 12 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 wherein it has been provided that if order is made by the Court under the aforesaid Act, for the recovery of possession of such premises, the order shall be binding on the persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons therefrom. As a result, this Civil Revision is dismissed. (Dr. Ravi Ranjan, J.) AAhmad