IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.438 of 2007 ---- 1. Smt.Dhanwanti Devi @ Dhanmanti Devi wife of Late Satyanarayan Kandu 2. Munna Prasad 3. Kannahai Prasad 4. Sunil Prasad All sons of Late Satyanarain Kandu All residents of in a part of “Ram Bhawan” and running a Hotel under name and style as Banarsi Hotel at New Dak Bunglow Road, P.S. Gandhi Maidan, District-Patna. --Defendants-judgments debtors-petitioners. Versus 1. Smt. Hemlata wife of Dr.Brahmanand Prasad 2. Sri Alok Kumar Prasad son of Late Dr. Brahmanand Prasad 3. Sri Vivekanand Prasad son of Late Dr. Brahmanand Prasad All resident of Ram Bhawan, New Dakbunglow Road, P.S.Gandhi Maidan, District-Patna. -- Plaintiffs-Decree Holders-Opposite Parties. ---- For the petitioners : Mr. S.K.Verma, Advocate For the opposite parties : None. ---- 03. 24.08.2009 Heard learned counsel for the petitioners. 2. This civil revision has been filed by defendants- judgment debtors-petitioners challenging order dated 22.12.2006 by which the learned Execution Munsif–III, Patna rejected Miscellaneous Case No.07 of 2004 filed by the petitioners under Sections 47 and 151 of the Code of Civil Procedure (hereinafter referred to as „the Code‟ for the sake of brevity) in Execution Case No.03 of 2002 challenging the eviction decree as null, fraudulent and inexecutable. 3. The instant matter arises out of Title Eviction Suit 89 of 1995 which was filed by the plaintiffs-decree holders-opposite parties for eviction of the defendants-judgment debtors-petitioners - 2 - on the only ground of personal necessity of the plaintiffs. The said suit was decreed ex parte on 08.05.1996. 4. However, against the aforesaid ex parte decree of eviction, defendants-petitioners had filed Misc. Case No.04 of 2002 under Order IX Rule 13 of the Code which was dismissed for default, whereafter the restoration petition filed by the defendants- petitioners was also dismissed. It transpires that thereafter no step was taken by the defendants-petitioners against the order of their eviction. 5. However, the plaintiffs-decree holders-opposite parties filed Execution Case No.03 of 2002 for execution of the aforesaid decree of eviction. In the said execution case, the defendants- judgment debtors-petitioners filed Misc.Case No.07 of 2004 under Sections 47 and 151 of the Code stating that the aforesaid eviction suit was subsequent suit and the earlier similar claim of the plaintiffs having been dismissed up till the Hon‟ble Apex Court, the instant suit was barred, but the plaintiffs concealed the earlier orders and played fraud upon the court in obtaining ex parte order of eviction which is thus a nullity. 6. Learned counsel for the petitioners further submits that earlier the plaintiffs-opposite parties had filed Title Suit No.201 of 1983 for eviction of the defendants-petitioners on the grounds of default in payment, breach of the term of tenancy as well as personal necessity. The said suit was dismissed by the trial court against which Title Appeal No.40 of 1985 was filed by the plaintiffs which - 3 - was also dismissed by the lower appellate court, whereafter the plaintiffs filed Second Appeal No.342 of 1988 which was allowed by this court and the eviction suit was decreed. However, against the judgment of this court, the defendants-petitioners filed S.L.P.No.1671 of 1992 which was subsequently numbered as Civil Appeal No.2464 of 1993 and after hearing the parties the Hon‟ble Supreme Court set aside the judgment of this court and allowed the civil appeal rejecting the claim of the plaintiffs. In the said circumstances, learned counsel for the defendants-petitioners submits that the learned court below should have allowed their Miscellaneous Case No.07 of 2004. 7. After hearing learned counsel for the petitioners and after perusing the materials on record, including the impugned order as well as the plaint of Title Suit No.201 of 1983, Title Suit No.89 of 1995 and the decision of the Hon‟ble Apex Court, it transpires that admittedly there is relationship of landlord and tenant between the parties and Title Suit No.201 of 1983 was filed by the plaintiffs- opposite parties for eviction of the defendants-petitioners on three grounds, namely default in payment of rent, breach of the term of tenancy and personal necessity of the plaintiffs. The said suit and the title appeal arising out of it were dismissed, but the second appeal was allowed by this court only on the ground of default in payment of rent. However, the order of this court was set aside by the Hon‟ble Apex Court vide its order dated 23.08.1995 considering only the question of default and no other question at all and holding that there - 4 - was no default. 8. It is also not in dispute that the instant suit bearing Title Suit No.89 of 1995 is only on the ground of personal necessity. It transpires that the plaintiffs-opposite parties had also filed another Title Eviction Suit No.05 of 1987 on the ground of personal necessity, but subsequently it was withdrawn immediately thereafter. In the said circumstances, it will legally have no bearing on Title Suit No.89 of 1995. 9. So far the issue of personal necessity of the plaintiffs taken in Title Suit No. 201 of 1983 is concerned, it was stated that Dr. Brahmanand Prasad was the only earning member in the family and due to his premature death, the plaintiffs were financially crippled and plaintiff no.2 Sri Alok Kumar Prasad was sitting idle after finishing his education and he wants to expand his own business in the suit premises for their livelihood. On the other hand, much subsequently Title Eviction Suit No.89 of 1995 was filed by the plaintiffs-opposite parties on the ground of personal necessity of plaintiff no.3 Shri Vivekanand Prasad who is a M.Com and wants to start his computer shop for job work and printing work for which he has got some training also and he wants to start the said business in the suit shop. Thus, it transpires that necessity claimed in Title Suit No.201 of 1983 was quite different from the necessity shown in Title Suit No.89 of 1995. In the said circumstances, there was no necessity for the plaintiffs at all to explain the earlier title suit and appeals arising therefrom up to the Hon‟ble Supreme Court and their - 5 - respective orders, specially of the Hon‟ble Apex Court which considered only the ground of default as the matter in issue was completely and absolutely different and they were not at all necessary for adjudicating the subsequent eviction suit. 10. In the said circumstances, it is quite apparent that neither any fraud has been played by the plaintiffs-opposite parties, nor the decree passed in Eviction Suit No.89 of 1995 is a nullity. Furthermore, the said decree being an ex parte decree, the miscellaneous case under Order IX Rule 13 of the Code filed by the defendants having been dismissed and no step with regard thereto having been taken by the defendants, it is quite apparent that the decree of eviction passed in Title Suit No.89 of 1995 has attained finality and has to be executed. 11. In the aforesaid facts and circumstances, this court finds that the learned court below has rightly rejected Miscellaneous Case No.07 of 2004 filed by the defendants-judgment debtors- petitioners under Sections 47 and 151 of the Code. This court does not find any illegality or jurisdictional error in the impugned order of the learned court below and accordingly, this civil revision is dismissed. Sunil (S. N. Hussain, J.)