IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.766 of 2011 Arun Kumar Thakur & Ors Versus Indrajeet Singh & Ors ----------- 3 6.7.2011 The petitioners-Judgment debtors have filed the instant application against the order dated 24.7.2010 passed by the learned Munsif, Khagaria in Execution Case No.01/1993 by which the Execution Case has been allowed to be dismissed at the instance of decree holder. The petitioners are also aggrieved by the part of the order by which restitution of possession of the suit property was also dismissed. The facts of the case in brief are that the plaintiffs filed a Title Eviction Suit No.27 of 1983 for eviction of the tenants, who are the petitioners in this application, on the ground of personal necessity as well as sub-letting of the premises bearing Holding no.22, Plot No.1411 of Mauza Sanhauligan (Khagaria), Ward No.7 of Khagaria Municipality. The Title Eviction suit was decreed in favour of the plaintiffs by judgment dated 29.9.1983 passed by the Sub-Judge, Khagaria. However, the judgment and decree passed by the Sub-Judge, Khagaria was set aside in Title Appeal No.03/1984. Thereafter, the plaintiffs filed Second Appeal No.482 of 1985 before this court which was allowed by order dated 30.3.1992 and the matter was remitted back to the court of Munsif, Khagaria to decide the matter under section 11(I)(C) of the Bihar Building (Lease, Rent and Eviction) Control Act as to whether partial ejectment of the suit house will satisfy the requirement of the plaintiffs or not.. The learned Munsif by 2 its judgment dated 7.11.1992 held that the partial eviction cannot satisfy the reasonable need of the plaintiffs and as such it was ordered that the defendants will vacate the disputed holding no.21 within 60 days from the date of order failing which the vacant possession will be delivered to the plaintiffs through the process of Court. Accordingly the decree was prepared on 11.2.1993. The petitioners being aggrieved by the judgment and decree dated 7.11.1992 passed by the learned Munsif, Khagaria preferred S.A. No.195 of 1999 before this court which was permitted to be withdrawn for filing a Civil Revision. The Civil Revision filed by the petitioners-Judgment debtors was also permitted to be withdrawn with liberty to file a suit. On the other hand, the plaintiffs filed Title Execution Case No.01/1993 in the court of the learned Munsif, Khagaria on 23.2.1993. However, during the pendency of the Title Execution Case No.01/1993 the judgment debtors filed an application on 20.9.2003 under Order 1 Rule 10(2) and section 151 C.P.C. for adding Girija Devi wife of Gorakh Yadav son of Deep Narayan Yadav as petitioner nos.10 and 11 in Title Execution Case No.01/1993 since the original plaintiffs-decree holders have sold the suit property to these two persons vide registered sale deed dated 11.4.2003 and 12.4.2003 respectively. The original decree holders have also filed an application before the Executing Court that they may be allowed to withdraw from the aforesaid Title Execution Case as they are no more interest in the suit property in question as they had already sold the same to Girija Devi and Gorakh Yadav. The Judgment debtors vide their petition dated 3.2.2007 made objection to the withdrawal petition of the 3 plaintiffs-decree holder. The learned Munsif after hearing the parties by its impugned order dated 24.7.2010 allowed the petition of the plaintiffs-decree holders. Mr. Doroncharya, learned counsel for the petitioners submits that the impugned order passed by the Executing Court is bad in law and in violation of the Order 21 Rules 35 and 36 as well as in teeth of the judgment rendered in the case of Samir Sobhan Sanyal Vs Tracks Trade Private Ltd. & Ors, reported in (1996) 4 SCC 144. He submits that the petitioners could have been dispossessed from the suit property only in execution of a decree and not otherwise and the petitioners should not have been forcibly dispossessed during the pendency of the execution case and in case if he has forcibly dispossessed during the pedency of the Execution Case, he is entitled for restitution of possession either under section 144 or section 151 C.P.C. The Executing Court while dismissing the plea of the petitioners observed that there has been no reversal of the decree passed by the Court decreeing the eviction of the Judgment debtors. The eviction suit was filed by the plaintiffs on the ground of personal necessity and sub letting in the year 1983 and was decreed by the learned trial court by its judgment dated 29.9.1983. However, in appeal the judgment and decree passed by the learned trial court was reversed on 30.7.1985 vide Title Appeal No.03/1984. The plaintiffs preferred S.A. No.482 of 1985 which was allowed by a bench of this court by order dated 30.3.1992 and the matter was remanded to the court of the learned Munsif. Khagaria to decide the matter under 4 section 11(I)(C) of the Bihar Building (Lease, Rent and Eviction) Control Act as to whether partial ejectment of the suit house will satisfy the requirement of the plaintiffs or not. The learned Munsif again decided the matter in favour of the plaintiffs-judgment debtors in the year 1992. The plaintiffs-decree holders also filed a Execution case for implementation of the decree and delivery of possession. On the other hand, the Second Appeal /Civil Revision preferred by the petitioners-Judgment debtors against the order of the learned Munsif on remand from this court too failed in the year 2001.Thus, it is an admitted position that the decree passed by the learned trial court remained intact and there was no reversal of the same and as such the petition for restitution of the possession on that score is misconceived and the learned trial court has rightly rejected the petition of restitution of the petitioners-judgment debtors as the decree of the courts in favour of the plaintiffs-decree holders has not been reversed. The petitioners-judgment debtors have contended that during the pendency of the Execution Case he has been dispossessed by the purchaser of the suit property namely Gorakh Yadav and his wife. The petitioners- judgment debtors could have been ousted only through appropriate process in Execution Case. In support of the contention the petitioners has placed reliance in the case of Samir Sobhan Sanyal (supra). I find that the decision made in the case of Samir Sobhan Sanyal (supra) could not be of much help to the petitioners as the facts of the instant case are different. In the aforesaid case, the appellant Samir Sobhan Sanyal was inducted into the premises as tenant on behalf of a company 5 pursuant to a lease entered into between the company and landlady. Subsequently, agreement of sale of the premises was entered into by the landlady with Respondent 6 despite the respondent being aware of continuance of possession and enjoyment of the premises by the appellant. Suit for specific performance of the sale agreement filed by Respondent no.6 decreed for Khas possession. No steps were taken by Respondent no.6 either to have the appellant impleaded as a party defendant to the suit for specific performance nor a decree personally against him obtained in any other independent proceedings. When possession of appellant was sought to be interdicted in execution proceeding, the appellant filed petition under Order 21 Rule 89 and 99 CPC and claimed adjudication of his right to remain in possession. The Apex Court held that the appellant’s dispossession from the premises without any decree or order of eviction is unlawful being without any due process of law. In the instant case I find that a decree of eviction was passed against the judgment debtors in the year 1983 which was set aside in appeal on 30.7.1985. The plaintiffs-decree holders succeeded in S.A. No.482/85 which was allowed by order dated 30.3.1992 and the matter was remitted back to the court of the learned Munsif to decide the matter under section 11(I)(C) of the Bihar Building (Lease, Rent and Eviction) Control Act as to whether partial ejectment of the suit house will satisfy the requirement of the plaintiffs or not.. The learned Munsif by its judgment dated 7.11.1992 held that the partial eviction cannot satisfy the reasonable need of the plaintiffs and as such it was ordered that the defendants will vacate the disputed holding no.21 6 KHAN within 60 days from the date of order failing which the vacant possession will be delivered to the plaintiffs through the process of Court. In the instant case the Judgment debtors were parties- defendants and they unsuccessfully twice contested the matter up to this Court. The decree of possession was passed against them. They stuck to the tenancy despite finally losing on all fronts in 1991-92, taking advantage of long drawn execution process. The execution case was started way back in the year 1992. The petitioners allege that they have been dispossessed by the defendant nos.10 and 11, the purchasers of the suit premises from the plaintiffs-decree holders. If the petitioners-Judgment debtors are aggrieved by their dispossession from the suit premises from the plaintiffs-decree holders, the remedy before them would be by way of filing a fresh suit. No fault is found in the order of the learned trial court in allowing the plaintiffs-decree holders to withdraw the Execution case. With the aforesaid observations and directions, this writ petition stands disposed of. (S.P.Singh,J)