IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19956 of 2011 Rama Nand Singh Versus Mahanth Lakshaman Das @ Mahant ---------------------------------- with Civil Writ Jurisdiction Case No.19957 of 2011 Binda Devi @ Bina Devi Versus Mahanth Lakshaman Das ---------------------------------- O R D E R 03. 22.12.2011. 1. I have heard Mr. Suraj Narayan Yadav on behalf of the petitioners in both the writ applications and the learned counsel, Mr. Sandeep Kumar on behalf of the respondent in both the writ applications. 2. Because of the fact that the point involved in both the writ applications are same and the decree holder-respondent in both the applications are same and the Advocates appearing in both the cases are same and in both the cases, the prayer of the petitioners is to stay further proceeding in execution case No.14 of 1964 pending in the Court of Sub Judge III, Patna, both the applications heard and disposed of by this common order. 3. The plaintiff-respondent/ ancestors of the respondent filed title suit No.86 of 1958 / 24 of 1960 for eviction of the tenants, i.e., against the Patna Transport Company and Public Relation Department from the suit premises. The said suit was decreed on 24.08.1964. For executing the said Judgment and Decree, the landlord - 2 - filed execution case No.14 of 1964. 4. In the said execution case, many persons filed objection. All the objections were decided against the said person. In civil revision No.1940 of 2001 filed by State of Bihar against the order rejecting the objection under Section 47 C.P.C., the High Court on 19.07.2002 dismissed the civil revision and directed the executing Court to get the decree executed with the help of local police. 5. The present petitioners of both the writ applications filed objection under Order 21 Rule 97 of the Code of Civil Procedure alleging that they are the tenant under the decree holder. The objection was registered as Misc. case No.17 of 2007 and 15 of 2007. Their case is that the transport company went in liquidation which was ultimately wound up in the year 1967. After the death of decree-holder, Mahant Ram Kishun Das in the year 1972, Mahant Chandra Shekhar Das and Mahant Lakshman Das inherited the property. Mahant Chandra Shekhr Das inducted the husband of the petitioner, Binda Devi and another petitioner, Ramanand Singh as tenant. These petitioners were not party in the eviction suit. 6. The decree-holder-respondent filed rejoinder to the said objection in both the Misc. case. After recording evidence of the parties, the executing Court dismissed the Misc. cases. Both the petitioners filed title appeals - 3 - being title appeal No.82 of 2011 and 81 of 2011. In that appeal, the petitioners filed application under Order 41 Rule 5 C.P.C. for stay of execution case No.14 of 1964. By the impugned order in both the appeals, the appellate Court rejected the prayer. 7. The learned counsel for the petitioner submitted that the petitioners are residing in the suit premises with their family in the capacity of tenant and the appeal has been admitted, therefore, the further proceeding of execution case No.14 of 1964 may be stayed otherwise the appellant shall suffer serious loss and irreparable injury. 8. The learned counsels for the petitioner relied upon various decisions of the Hon’ble Apex Court such as (i) 2008 (10) S.C.C. 796 (ii) 2005 (1) P.L.J.R. 321 (iii) 2001 (1) P.L.J.R. 661 (iv) 2008 (8) P.L.J.R. 289 and submitted that when the appeal has been admitted, it is general rule that the execution case and / or the delivery of possession of the residential house is always stayed. 9. On the other hand, the learned counsel for the decree-holder-respondent submitted that all the decisions cited by the petitioner are not applicable in the facts and circumstances of the case because here in the present case, the respondent is not executing the decree against which the petitioners have filed appeal rather the decree- - 4 - holder is executing the decree of the year 1964 against which no appeal is pending. According to the learned counsel, the claim of the petitioners has been investigated by the executing Court in the Misc. cases and found against the petitioner and, therefore dismissed the Misc. cases. Therefore, prima facie the petitioners have got no case for stay of execution case and the appellate Court hearing the title appeals against the deemed decree cannot stay the execution of the decree passed in earlier suit. 10. Admittedly, against the Judgment and Decree which has been put in execution case No.14 of 1964, no appeal is pending. Order 41 Rule 5 of the Code of Civil Procedure provides for the stay of execution case or a proceeding under a decree or order appealed from. In the present case as stated above, there is no appeal. The appeal that has been filed by the petitioner is against the deemed decree passed by the executing Court under Order 21 Rule 103 C.P.C. The appellate Court in these appeals will not examine the correctness or otherwise of the Judgment and decree sought to be executed in execution case No.14 of 1964. All the decisions cited by the petitioners relates to the appeal against Judgment and Decree which were sought to be executed. Here, the matter is otherwise. 11. Section 12 of the Bihar Building (Lease, Rent - 5 - and Eviction) Control, Act reads as follows : “12. Binding nature of the order of the Court on all persons in occupation of the building – Notwithstanding anything contained in any other law, where the interest of tenant in any premises is determined for any reason whatsoever and any order is made by the court under this Act, for the recovery of possession of such premises, the order shall be binding on all 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 : Provided that nothing in this section shall apply to any person who has an independent title to such premises or to a tenant who has been inducted with the express written permission of the landlord himself personally.” 12. The stand of the petitioners is that they are the tenant under the respondent. According to the respondent, they are encroacher and land grabber and the landlord never inducted them as tenant. Admittedly, there is no express written permission of the landlord filed by the petitioners in support of their case. They are also not claiming independent title on the suit premises. The learned executing Court after considering these facts and circumstances dismissed the Misc. case. 13. From perusal of the impugned order passed by the appellate Court, it appears that the learned Court below after considering the facts rejected the prayer for stay. In view of the above discussion, in my opinion, the petitioners have no prima facie case for the grant of stay of further proceeding of the execution case No.14 of 1964. Considering the age of the execution case, this Court earlier directed the Court to execute the decree as - 6 - early as possible. However, it appears that the petitioners are putting hindrances in the execution case. without their being any prima facie case. 14. I, therefore, find that the learned lower appellate Court has rightly rejected the stay application filed by the petitioners. Therefore, the impugned orders cannot be interfered with in supervisory jurisdiction under Article 227 of the Constitution of India. However, if any expression regarding merit of the case made in this writ application shall not be considered by the appellate Court while deciding the title appeals. In other words, this order passed by this Court will not prejudice either of the party or the Court in deciding the appeal. It is made clear that whatever expression has been made in these applications are confined only for disposal of these applications. 15. Thus, this writ application is devoid of any merit and accordingly these applications are dismissed. Patna High Court, Patna The 22nd day of December, 2011 Sanjeev/N.A.F.R. (Mungeshwar Sahoo,J.)